JANUARY / FEBRUARY 2018
ALSO INSIDE: Medical Board's Guidelines for the Recommendation of Cannabis for Medical Purposes
VOLUME 24 | NUMBER 1
The Santa Clara County Medical Association’s External Affairs Committee invites you to attend
“LUNCH WITH OUR LEGISLATORS” 12:00 – 2:00 PM (Lunch provided)
Senator Jim Beall, District 15 Friday, March 9, 2018
Senator Robert Wiekowski, Dist. 10 Friday, March 23, 2018
Congressman Ro Khanna, CA-17 Friday, May 4, 2018
SCCMA Headquarters 700 Empey Way | San Jose, CA 95128
Come join in the lively discussions regarding a variety of topics! Please “Fax Back” RSVP to Jean Boileau Cassetta, 408/289-1064 or jean@sccma.org ASAP. All SCCMA members, Ext. Affairs Comm., and SCCMA Alliance members are welcome to attend!
Friday, March 9, 2018 (Senator Beall)
¨ Yes, I will attend ¨ No, I am unable to attend
Friday, March 23, 2018 (Senator Wiekowski) ¨ Yes, I will attend ¨ No, I am unable to attend
Friday, May 4, 2018 (Congressman Khanna) ¨ Yes, I will attend ¨ No, I am unable to attend
Name(s): _______________________________ _______________________________________ Ph: ____________________________________ Fax: ___________________________________
BULLETIN THE
Official magazine of the Santa Clara County Medical Association and the Monterey County Medical Society
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Feature Articles 10 New Healthcare Laws 2018 16 Guidelines for the Recommendation of Cannabis for Medical Purposes from the Medical Board 26 Cancer in Your Car Seat? Your Baby’s Car Seat Can Now Be Free of Toxic Flame Retardants 28 Did You Know CMA’s Online Health Law Library is FREE to Members?
House of Delegates Representation Human Resources Services Legal Services/On-Call Library Legislative Advocacy/MICRA Membership Directory APP for the iPhone Physicians’ Confidential Line Practice Management Resources and Education
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6 Message From the SCCMA President
7 Message From the MCMS President
31 CMA’s 44th Annual Legislative Advocacy Day 32 Tip of the Month 33 Classified Ads 34 Medical Times From the Past 36 Physicians News Network
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The Santa Clara County Medical Association OFFICERS
CHIEF EXECUTIVE OFFICER
COUNCILORS
President Seham El-Diwany, MD President-Elect Kenneth Blumenfeld, MD Past President Scott Benninghoven, MD VP-Community Health Cindy Russell, MD VP-External Affairs Erica McEnery, MD VP-Member Services Ryan Basham, MD VP-Professional Conduct Faith Protsman, MD Secretary Seema Sidhu, MD Treasurer Anh Nguyen, MD
William C. Parrish, Jr.
El Camino Hospital of Los Gatos: Lewis Osofsky, MD El Camino Hospital: Gloria Wu, MD Good Samaritan Hospital: Vinit Madhvani, MD Kaiser Foundation Hospital - San Jose: Hemali Sudhalkar, MD Kaiser Permanente Hospital: Martin Wong, MD O’Connor Hospital: Cathy Angell, MD Regional Medical Center: Heather Taher, MD Saint Louise Regional Hospital: Vacant Stanford Health Care / Children's Health: John Brock-Utne, MD Santa Clara Valley Medical Center: Clifford Wang, MD
CMA TRUSTEES - SCCMA Thomas M. Dailey, MD (District VII) Kenneth Blumenfeld, MD (District VII)
BULLETIN THE
Official magazine of the Santa Clara County Medical Association and the Monterey County Medical Society
THE MONTEREY COUNTY MEDICAL SOCIETY
Printed in U.S.A.
OFFICERS
Managing Editor Pam Jensen
Opinions expressed by authors are their own, and not necessarily those of The Bulletin, SCCMA, or MCMS. The Bulletin reserves the right to edit all contributions for clarity and length, as well as to reject any material submitted in whole or in part. Acceptance of advertising in The Bulletin in no way constitutes approval or endorsement by SCCMA/MCMS of products or services advertised. The Bulletin and SCCMA/MCMS reserve the right to reject any advertising. Address all editorial communication, reprint requests, and advertising to: Pam Jensen, Managing Editor 700 Empey Way San Jose, CA 95128 408/998-8850, ext. 3012 Fax: 408/289-1064 pjensen@sccma.org © Copyright 2018 by the Santa Clara County Medical Association.
4 | THE BULLETIN | JANUARY / FEBRUARY 2018
President Maximiliano Cuevas, MD President-Elect David Ramos, MD Past-President Craig Walls, MD PhD Secretary Alfred Sadler, MD Treasurer Steven Harrison, MD
CHIEF EXECUTIVE OFFICER William C. Parrish, Jr.
DIRECTORS Valerie Barnes, MD Christopher Burke, MD David Holley, MD William Khieu, MD Eliot Light, MD
Phillip Miller, MD Walter Mills, MD James Ramseur, MD Stephen Saglio, MD Diane Sanchez, MD
A new documentary film about the health risks of wireless technology This is co-sponsored by the SCCMA Alliance Foundation
Saturday, April 21 | 10:00 am-12:00 pm SCCMA Offices, 700 Empey Way, San Jose, CA Invitees: Physicians, families and friends | No Cost to Attend
Please join us for a free showing of the new documentary, Generation Zapped. It will explore some of the issues and risks surrounding wireless technology that we are dependent on and immersed in. A panel discussion will follow the movie. Refreshments will be provided. Visit http://generationzapped.com for more information on the film. The SCCMA is not an official sponsor of this event. JANUARY / FEBRUARY 2018 | THE BULLETIN | 5
Public Health is Too Important to be Left to Politicians
President, Santa Clara County Medical Association
SEHAM EL-DIWANY, MD, FAAP
MESSAGE FROM THE
SCCMA PRESIDENT
T
Seham El-Diwany, MD, FAAP is the 2017-2018 president of the Santa Clara County Medical Association. She is a board certified pediatrician with The Permanente Medical Group and is currently practicing with Kaiser Permanente San Jose.
he political agenda of our government is infecting our nation’s public health at unprecedented proportions. A new Draft strategic plan from HHS was released for public comments only two days before HHS Secretary Tom Price resigned his office. It didn’t come as a surprise that “The Plan” managed to upset both sides of the aisle including some of the more conservative voices of the medical community. Shortly after the HHS proposal, the Presidential Advisory Council on HIV/ AIDS resigned in protest to the HHS plan handling of the HIV programs. As intended, this plan has seismic implications for all of health care—my objective here is to examine only a part of the implication the plan has on public health. The medical community is accustomed to subtle political pressure influencing public health policy. Confrontational and relentless, this new style threatens the tried and true pillars of public health. Officials at the Centers for Disease Control and Prevention were reportedly advised by HHS to avoid using several words or phrases, including “science-based,” “fetus,” “transgender,” “vulnerable,” “entitlement,” “diversity” and “evidence-based” in agency budget documents. In some cases, alternative phrases have been suggested—for example instead of “science-based,” or “evidence-based,” the suggested phrase is “CDC bases its recommendations on science in consideration with community standards and wishes.” Though possibly more stylistic than substantive, this is the tip of an iceberg of directives aimed at disempowering our nation’s effectors of public health. The new HHS proposed plan leverages faith-based organizations as part of an overt effort to purse-string public health with conservative values. There are many highly effective faith-based health care organizations that have retained their autonomy through the dramatic social changes of the 20th and 21st centuries. Issuing a call, writ-large, to faithbased organizations seems to suggest that they may somehow limit the autonomy of healthcare provider organizations. On substance, the HHS new draft plan continues to harp on the same political agenda—shifting the focus from covering all Americans to free-market solutions and personal responsibility. This familiar rhetorical strategy is being used to divert discussion and analysis of the deep disparities
6 | THE BULLETIN | JANUARY / FEBRUARY 2018
in our nation’s health and healthcare, which in effect further propagates the divide. Customarily, HHS releases a strategic plan every 4 years (which corresponds with the term of the U.S. president). Such strategic plan outlines to the HHS agencies (almost 30 agencies with 80,000 employees) the administration priorities. Equally important, it provides guiding principles for those agencies to make adjustments in priorities with regards to shifting needs in our nation’s health. It is not meant to be any political party’s football for punting. Public policies are meant to respond to new realities and not create them. The ACA (The Affordable Care Act) came in response to such realities and is now itself a reality in spite of disagreements about what to do with it. The ACA has become very much like the Social Security system (that was also vehemently opposed by the Republican Party at the time) and will continually require improvements rather than destruction. The general wisdom is that institutions will always prevail in the end but the question always remains at what cost? A vivid example of such failures (populism ahead of science and even common sense) was the late response to the HIV epidemic in the eighties when it was portrayed as a disease afflicting the gay community (in New York City and San Francisco) as opposed to a threat to public health. Many countries in Africa are still reeling under the HIV epidemic that world will only give lip service to it. Public health is local, national, and global. New viruses from third world villages will find their way into Texas churches and New York City nightclubs alike. The proposed HHS Strategic Plan relegates public health into “Personal Responsibility.” Instead of promoting CDC as the leading force in WHO (World Health Organization), we see isolationist policies and relinquishing of responsibilities promoted by the new proposed HHS strategic plan. The Ebola epidemic in West Africa in 2013-2016 was an example of a major undertaking by WHO in cooperation with the CDC. While far from being perfect, it succeeded in avoiding a world-wide pandemic similar to the Flu pandemic of 1918 that claimed an estimated 20 to 50 million lives. The world can be anytime one mutation away from a similar pandemic for which the “Wall” is of no use.
President, Monterey County Medical Society
MAXIMILIANO CUEVAS, MD, FACOG
signs calling for immigration reform that recognizes the contributions of farm-workers and builds a clear path toward achieving legal status in the U.S. The agricultural industry needs to stand up and state the obvious—without water AND a qualified workforce agriculture will crumble. The failure of Congress on agricultural workers has been a constant for many decades. This failure has already had serious and structural repercussions for California agriculture. Republicans and Democrats in Congress who represent agriculture producing counties in California who are either married to Latinas, own dairies, are part of “chain migration” of Portuguese families operating businesses dependent on Mexican farm workers, who have several Mexican’s as their “best friends,” or represent districts with high concentration of Latinos, have lacked courage, leadership and honesty. The Majority Leader of the U.S. House is from the San Joaquin Valley and others from this region are key members of the majority party. These Congressmen have been in office for many years. How is it that they have not been able to move any legislation on this MOST important issue? I firmly believe they have been reluctant to do what is necessary to move the needle forward on this issue. These politicians have all made their convenient and annual statements of respecting the work ethic of farm workers and their economic contributions. All have spoken about the urgency and importance of resolving the status of DACA individuals but have not even made the serious and concrete attempt to include the parents of these young people nor the adults who have been working alongside the grower community to harvest the products that their businesses will profit on. These people working alongside the ag community are those same people who
MESSAGE FROM THE
P
overty, race, ethnicity and access to care all impact the rates of specific health conditions and outcomes. Low-income Monterey County residents are at particular risk for chronic conditions effectively mitigated and managed by access to a healthcare provider. Working in the agricultural industry of California has always required a great deal from a workforce that has had little invested in their well-being. The work they perform ages them, causes more chronic illnesses, and provides very limited resources to address these conditions. Farmworkers in California agriculture have always been hard working and very productive. This has been the history of the Mexican farmworker since World War I and II when they were brought in to compensate for the labor shortage. Regardless of immigration status, this undocumented workforce has contributed mightily (and beyond any dispute) to the phenomenal production and riches California agriculture has come to be known for throughout the world. Manuel Cunha, Jr., the President of the Nisei Farmers League expressed, with eloquence, this reality of “…Our agricultural workers…” in his letter to California Agriculture Today December 15, 2017. He points out how these workers pay taxes, (state, federal income and sales), into the social security fund and serve as the “backbone” of the state’s $50 billiondollar agriculture industry. He is also on target when he speaks of how Congress has failed agricultural workers not only in our state but throughout the nation. Mr. Cunha’s opinion on ag workers should be joined by all in the agricultural industry of California. While we see signs throughout the central valley clamoring for more water and criticizing Governor Brown for his policy on water, we do not see any
MCMS PRESIDENT
Congressional Failure on Agriculture Requires Deliberate and Decisive Democracy
Maximiliano Cuevas, MD, FACOG is the 2017-2018 president of the Monterey County Medical Society. He is currently the Chief Executive Officer at Clinica de Salud del Valle de Salinas.
Continued on page 8 JANUARY / FEBRUARY 2018 | THE BULLETIN | 7
Message From the MCMS President, from page 7 are living and working in their communities and districts for decades and generations. But how has this concern and respect been manifested by elected officials of both political parties? With words and little action. It has been chronicled for decades that this invaluable workforce has worked for low wages, without real access to health care services, without adequate housing, and without legal status. Since the Obama administration and now with the 45th President of the U.S., detentions, deportations and fear tactics are a common thread. The health status of farm workers has always been perhaps the worst of all workers. The fear caused by their vulnerabilities due to immigration has now been chronicled to have a much more complex and dangerous impact. A study just released by researchers at UC San Francisco and UC Berkeley’s Center for Environmental Research and Children’s Health (CERCH) found that anxiety, tension and fear associated with possible deportations are linked with multiple cardiovascular health risk factors in Latinas in the Salinas Valley. Previous research has documented the impact of fear of deportation on mental health, families and communities but we have not assessed the effect on physical health. Data for this study was gathered between 2012 and 2014 from 545 women enrolled in the Center for the Health Assessment of Mothers and Children of Salinas (CHAMACOS) cohort. CHAMACOS is internationally recognized and is the longest-running study of an agricultural community in the U.S. Clinica de Salud del Valle de Salinas (CSVS) has played an intricate role in this research endeavor since its inception. The first author of the study and assistant professor at UCSF, Jacqueline Torres, stated that the results “…are not surprising and that
“They are nevertheless heartbreaking, because they suggest that individuals who are targeted by immigration enforcement practices—and live in fear of the effects on their family and community members— might bear a dual burden related to the adverse consequences of this immense stress on their physical health.” California agriculture has been faced for the last two decades with an ever-reducing workforce and has confronted major problems with water shortages. They now must confront the worsening health care consequences caused by immigration policies that have little to do with economic realities, humane, practical and fair treatment of unauthorized farm workers. Any discussion on ag economics and the ag industry must include a clear solution that secures the needed workforce to maintain food production at the levels projected as necessary to feed our nation and the world. Where is the political leadership on this issue? Where are the ideas, concrete policy proposals that we can all advocate for and support? It appears that too many elected officials spend time talking about how they feel as opposed to taking action on what should and could be done to build a greater society. Democracy works best when the people take decisive and deliberate action. It is time that voters of agricultural producing and dependent counties take deliberate and decisive action and replace these incumbents regardless of party. Until elected officials are held accountable in this manner, farm workers, the ag economy and real people will suffer consequences that will not be able to be corrected anytime soon. Worse of all, hope is being lost because our elected officials are failing to lead and provide a path to resolution. We know that our elected officials care, but the road to hell is paved with good intentions!
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New Laws 2018 Significant new California laws of interest to physicians The California Legislature had an active year, passing many new laws affecting health care. On the following pages you will find highlights of the most significant health laws of interest to physicians. 10 | THE BULLETIN | JANUARY / FEBRUARY 2018
ANCILLARY SERVICES
if they are maintained electronically and if the patient requests the records in an electronic format.
SB 512 (Hernandez) – Health care practitioners: stem cell therapy Requires licensed health care practitioners who perform stem cell therapy that is not approved by the United States Food and Drug Administration (FDA) to communicate to their patients seeking stem cell therapy specified information regarding the provision of stem cell therapies on a specified notice in a prominent display in an area visible to patients in his or her office, posted conspicuously in the entrance of his or her office, and provided in writing to the patient prior to providing the initial stem cell therapy. Does not apply to a health care practitioner who has obtained approval for an investigational new drug or device from the FDA for the use of human cells, tissues, or cellular or tissue-based products.
CONFIDENTIAL INFORMATION AB 210 (Santiago) – Homeless multidisciplinary personnel team
ALLIED HEALTH PROFESSIONALS AB 89 (Levine) – Psychologists: suicide prevention training Requires, effective January 1, 2020, an applicant for licensure or license renewal as a psychologist to complete a minimum of six hours of coursework or applied experience under supervision in suicide risk assessment and intervention.
AB 1153 (Low) – Podiatry Authorizes a doctor of podiatric medicine with training or experience in wound care to treat ulcers resulting from local and systemic etiologies on the leg no further proximal than the tibial tubercle.
SB 554 (Stone) – Nurse practitioners: physician assistants: buprenorphine Prohibits construing the Nursing Practice Act, the Physician Assistant Practice Act, or any provision of state law from prohibiting a nurse practitioner or physician assistant from furnishing or ordering buprenorphine to a patient when done in compliance with the provisions of the federal Comprehensive Addiction Recovery Act.
CMA Position: Support Authorizes counties to establish a homeless adult and family multidisciplinary personnel team, with the goal of facilitating the expedited identification, assessment, and linkage of homeless individuals to housing and supportive services and to allow provider agencies, including those providing health, mental health, and substance abuse services to share confidential information, for the purpose of coordinating housing and supportive services to ensure continuity of care.
AB 1119 (Limón) – Developmental and mental health services: confidentiality CMA Position: Support Existing law requires all information and records obtained in the course of providing specified developmental and mental services to be confidential and authorizes disclosure only in specified cases. This bill additionally authorizes, during the provision of emergency services and care, the communication of patient information and records between specified individuals, including physicians and surgeons.
SB 241 (Monning) – Medical records: access CMA Position: Support Revises provisions of law governing the right of patients to access and copy their medical records by conforming these requirements to federal Health Information Portability and Accountability Act of 1996 (HIPAA) requirements, including conforming state law regarding charges for clerical costs and requiring health care providers to provide the records in an electronic format
SB 575 (Leyva) – Patient access to health records Expands a provision of law that entitles a patient to a copy, at no charge, of the relevant portion of the patient’s records that are needed to support an appeal regarding eligibility for certain public benefit programs, by including initial applications in addition to appeals, and by expanding the list of public benefit programs to include InHome Supportive Services, the California Work Opportunity and Responsibility to Kids program, CalFresh, and certain veterans related benefits.
DRUG PRESCRIBING AND DISPENSING AB 40 (Santiago) – CURES database: health information technology system CMA Position: Support Requires the California Department of Justice (DOJ) to make electronic prescription drug records contained in its Controlled Substance Utilization Review and Evaluation System (CURES) accessible through integration with a health information technology system no later than October 1, 2018, if that system meets certain information security and patient privacy requirements.
AB 265 (Wood) – Prescription drugs: prohibition on price discount CMA Position: Support Prohibits, with specified exceptions, a person who manufactures a prescription drug from offering in California any discount, repayment, product voucher, or other reduction in an individual’s out-of-pocket expenses associated with his or her health insurance, health care service plan, or other health coverage, including, but not limited to, a copayment, coinsurance, or deductible, for any prescription drug if a lower cost generic drug is covered under the individual’s health insurance, health care service plan, or other health coverage on a lower cost-sharing tier that is designated as therapeutically equivalent to the prescription drug manufactured by that person or if the active ingredients of the drug are contained in products regulated by the federal Food and Drug Administration, are available without prescription at a lower cost, and are not otherwise contraindicated for the condition for which the prescription drug is approved.
AB 720 (Eggman) – Inmates: psychiatric medication: informed consent CMA Position: Support Extends to an inmate confined in a county jail the protection from being administered any psychiatric medication without his or her prior in-
JANUARY / FEBRUARY 2018 | THE BULLETIN | 11
formed consent, with certain exceptions. Imposes additional criteria that must be satisfied before a county department of mental health or other designated county department may administer involuntary medication. Requires any court-ordered psychiatric medication to be administered in consultation with a psychiatrist who is not involved in the treatment of the inmate at the jail, if one is available. Requires a county that administers involuntary psychiatric medication to file a report with prescribed information to certain committees of the Legislature.
AB 1048 (Arambula) – Health care: pain management and Schedule II drug prescriptions CMA Position: Sponsor Beginning July 1, 2018, authorizes a pharmacist to dispense a Schedule II controlled substance as a partial fill if requested by the patient or the prescriber. Requires the pharmacy to retain the original prescription, with a notation of how much of the prescription has been filled, the date and amount of each partial fill, and the initials of the pharmacist dispensing each partial fill, until the prescription has been fully dispensed. Authorizes a pharmacist to charge a professional dispensing fee to cover the actual supply and labor costs associated with dispensing each partial fill associated with the original prescription.
SB 17 (Hernandez) – Health care: prescription drug costs. CMA Position: Support Requires health plans and insurers that report rate information through the existing large and small group rate review process to also report specified information related to prescription drug pricing to Department of Managed Health Care (DMHC) and California Department of Insurance (CDI). Requires DMHC and CDI to compile specified information into a consumerfriendly report that demonstrates the overall impact of drug costs on health care premiums. Requires drug manufacturers to notify specified purchasers, in writing at least 90 days prior to the planned effective date, if it is increasing the wholesale acquisition cost (WAC) of a prescription drug by specified amounts. Requires drug manufacturers to notify Office of Statewide Health Planning and Development (OSHPD) three days after federal Food and Drug Administration (FDA) approval when introducing a new drug to market at a WAC that exceeds the Medicare Part D specialty drug threshold. Requires drug manufacturers to provide specified information to OSHPD related to the drug’s price.
END-OF-LIFE ISSUES AB 242 (Arambula) – Certificates of death: veterans CMA Position: Support Requires a person completing certificate of death to indicate whether the deceased person was ever in the Armed Forces of the United States. Requires the Department of Public Health to access data in the electronic death registration system to compile data on veteran suicides and to provide an annual report to the Legislature and the Department of Veterans Affairs.
HEALTH CARE COVERAGE SB 133 (Hernandez) – Health care coverage: continuity of care Requires a health care service plan to include notice of the process to obtain continuity of care in any evidence of coverage issued after January 1, 2018. Requires a health plan to provide a written copy of this information to its contracting providers and provider groups, and a copy to its enrollees upon request. Extends existing continuity of care protections in the Health & Safety Code and Insurance Code to health plan enrollees and insureds whose prior coverage was terminated because the health plan or insurer withdrew from any portion of a market. Requires a health plan or insurer to include notice of the availability of the right to request completion of covered services as part of, to accompany, or to be sent simultaneously with any termination of coverage notice sent under specified circumstances.
SB 223 (Atkins) – Health care language assistance services Requires a health care service plan and a health insurer to notify enrollees or insureds upon initial enrollment and in the annual renewal materials of the availability of language assistance services and of certain nondiscrimination protections, and would require this information to be included in the evidence of coverage, on other materials disseminated to enrollees or insureds, and to be posted on the plan or insurer’s website. Requires this written notice to be made available in the top 15 languages spoken by limited-English-proficient (LEP) individuals in California as determined by the State Department of Health Care Services (DHCS). Establishes minimum qualifications for an interpreters providing interpretation services to enrollees and insureds and prohibits the plan or health insurer from requiring an LEP enrollee or insured to provide his or her own interpreter or rely on a staff member who is not a qualified interpreter to communicate directly with the enrollee or insured. Applies to Medi-Cal managed care plans, mental health plans, DHCS in ad-
12 | THE BULLETIN | JANUARY / FEBRUARY 2018
dition to health care service plans and insurers.
HEALTH CARE FACILITIES AND FINANCING AB 395 (Bocanegra) – Substance use treatment providers Adds the use of medication-assisted treatment as an authorized service by narcotic treatment programs licensed by the State Department of Health Care Services. Authorizes methadone, LAAM, buprenorphine, or any other medication approved by the FDA for the purpose of medication-assisted treatment to be used by a licensed narcotic treatment program. Authorizes the department to implement, interpret, or make specific this provision by means of plan or provider bulletins, or similar instructions and require the department to adopt regulations no later than January 1, 2021. Authorizes a physician to treat a number of patients specified under the DEA registration instead of a maximum of 20. Specifies that bills for services under Drug Medi-Cal must be submitted within six months.
AB 658 (Waldron) – Clinical laboratories CMA Position: Support Directs the California Department of Public Health to temporarily suspend the annual renewal fee for clinical laboratory licenses until January 1, 2020.
AB 1102 (Rodriguez) – Health facilities: whistleblower protections Increases the maximum criminal fine, from $20,000 to $75,000, for violations of whistleblower protection laws that apply to patients, employees, and other health care workers of hospitals.
SB 54 (De León) – Law enforcement: sharing data CMA Position: Support Limits the involvement of state and local law enforcement agencies in federal immigration enforcement. States that the Attorney General shall publish model policies limiting assistance with immigration enforcement to the fullest extent possible consistent with federal and state law at public schools, public libraries, health facilities operated by the state or a political subdivision of the state, courthouses, Division of Labor Standards Enforcement facilities, the Division of Workers Compensation, and shelters, and ensuring that they remain safe and accessible to all California residents, regardless of immigration status. Requires all public schools, health facilities operated by the state or a political subdivision of the state, and courthouses to implement the model policy, or an equivalent policy. Encourages other entities that provide services related to physical or mental health to adopt the model policy.
SB 219 (Wiener) – Long-term care facilities: rights of residents
means of all-county letters, plan letters, or plan or provider bulletins.
and a process for collecting data related to driving under the influence.
CMA Position: Neutral Enacts the Lesbian, Gay, Bisexual and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights and makes it unlawful for any longterm care facility to take specified actions on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus status. Prohibited actions include denying admission to a facility, refusing to make room assignments based on a transgender resident’s gender identity, failing to use a resident’s preferred name or pronouns, and denying or restricting appropriate medical or nonmedical care. Requires each facility to post a nondiscrimination notice.
SB 171 (Hernandez) – Medi-Cal: Medi-Cal managed care plans
MENTAL HEALTH
MEDI-CAL AB 205 (Wood) – Medi-Cal: Medi-Cal managed care plans CMA Position: Support Requires Medi-Cal managed care plans (MCMC) to maintain a network of providers that meet specified time and distance standards, specific to county and provider type. Requires plans that cannot meet the standards to submit a request for alternative access standards. Permits the use of clinically appropriate telecommunications technology as a means of determining annual compliance with the time and distance standards or in approving alternative access to care. Sunsets these requirements on January 1, 2022. Implements changes required by the federal Medicaid managed care rule related to state fair hearings involving MCMC beneficiaries as well as to beneficiary grievances and appeals to MCMC plans.
AB 340 (Arambula) – Childhood trauma screening CMA Position: Support Requires the State Department of Health Care Services (DHCS), in consultation with the State Department of Social Services and others, to convene, by May 1, 2018, an advisory working group to update, amend, or develop tools and protocols for screening children for trauma within the Early and Periodic Screening, Diagnosis, and Treatment Program benefit. Requires this group to report its findings and recommendations, as well as any appropriations necessary for implementation to DHCS and to the Legislature’s budget subcommittees on health and human services no later than May 1, 2019. Requires review of the protocols for the screening of trauma in children at least once every 5 years, or upon the request of the department. Authorizes DHCS to implement, interpret, or make specific these provisions by
CMA Position: Support Implements federal Medicaid managed care regulations. Commencing July 1, 2019, requires a Medi-Cal managed care plan to comply with a minimum 85 percent Medical Loss Ratio (MLR) and to report the MLR for each MLR reporting year as specified. Requires, effective for contract rating periods commencing on or after July 1, 2023, a Medi-Cal managed care plan to provide a remittance to the state if the MLR does not meet the minimum ratio of 85 percent for that reporting year, and specifies how any remittance will be transferred. Requires the Department of Health Care Services (DHCS) to ensure that call covered mental health and substance use disorder benefits comply with federal regulations. Directs DHCS to require Medi-Cal managed care plans to increase certain payments to designated public hospitals, as specified, and to establish a program under which such hospitals may earn performance-based quality incentive payments.
MEDICAL CANNABIS AB 133 (Committee on Budget) – Cannabis Regulation Makes changes to the Medicinal and AdultUse Cannabis Regulation and Safety Act and repeals prohibition limiting medicinal cannabis manufacturers to only manufactures medicinal cannabis products for sale by a medicinal cannabis retailer. Provides of an exception to the prohibition by an adult use cannabis licensee from allowing persons under 21 years of age on its premises if the licensee holds a medicinal license, as specified. Allows for the sale of medicinal cannabis products to the primary caregiver of a person who possesses a valid recommendation.
SB 94 (Committee on Budget and Fiscal Review) – Cannabis: medicinal and adult use CMA Position: Support Establishes a single system of administration for cannabis laws in California. Contains changes to the Budget Act of 2017 that are necessary for state licensing entities to implement a regulatory framework pursuant to the Medical Cannabis Regulation and Safety Act (MCRSA) and the Adult Use of Marijuana Act (AUMA) of 2016 (Proposition 64). Conforms MCRSA and AUMA into a single system that prioritizes consumer safety, public safety and tax compliance. Creates agricultural cooperatives, a method for collecting and remitting taxes, a process for testing and packaging,
AB 1315 (Mullin) – Mental health: early psychosis and mood disorder detection and intervention Establishes the Early Psychosis Intervention Competitive Selection Process Plus Program and an advisory committee to the Mental Health Services Oversight and Accountability Commission to expand the provision of high-quality, evidence-based early psychosis and mood disorder detection and intervention. Establishes the Early Psychosis Detection and Intervention Fund and provides that moneys in the fund shall be available, upon appropriation by the Legislature, to the commission for the purposes of the bill.
SB 565 (Portantino) – Mental health: involuntary commitment Requires mental health facilities, upon a patient’s completion of a 14-day period of intensive treatment for mental disorder or impairment by chronic alcoholism, to make reasonable attempts to notify family members or any other person designated by the patient at least 36 hours prior to any certification review hearing for an additional 30 days of treatment.
PROFESSIONAL LICENSING AND DISCIPLINE AB 508 (Santiago) – Health care practitioners: student loans CMA Position: Support Repeals provisions of law authorizing boards to cite and fine, or deny licensure or licensure renewal, to a health care practitioner if he or she is in default on a United States Department of Health and Human Services education loan.
AB 1340 (Maienschein) – Continuing medical education: mental and physical health care integration Requires the Medical Board of California to consider including in its continuing education requirements a course in integrating mental and physical health care in primary care settings, especially as it pertains to early identification of mental health issues and exposure to trauma in children and young adults and their appropriate care and treatment.
SB 798 (Hill) – Healing arts: boards Extends the operation of the Medical Board of California until 2022 and makes various changes to the Medical Practice Act. Includes, among other provisions, elimination of the medical board’s authority to approve ABMS equivalent boards,
JANUARY / FEBRUARY 2018 | THE BULLETIN | 13
establishes a post-graduate training license for physicians, requires additional residency training, makes the Board of Podiatric Medicine independent of the Medical Board of California, changes the adverse event reporting requirements for outpatient surgery settings, changes the requirements for use of an expert witness in disciplinary cases, extends the authorization for the Osteopathic Medical Board of California (OMBC), and makes changes to continuing medical education for OMBC-licensed physicians.
PUBLIC HEALTH AB 643 (Frazier) – Pupil instruction: abusive relationships Amends the California Healthy Youth Act to require school districts to include information about the early warning signs of adolescent relationship abuse and intimate partner violence in its comprehensive sexual health education and HIV prevention education for all pupils in grades 7 to 12.
AB 841 (Weber) – Pupil nutrition: food and beverages: advertising CMA Position: Support Prohibits, except as provided, a school, school district, or charter school from advertising food or beverages during the school day, and from participating in a corporate incentive program that rewards pupils with free or discounted foods or beverages that do not comply with specified nutritional standards when the pupils reach certain academic goals. Provides that it is the intent of the Legislature that the governing board or body of a school district and a charter school annually review their compliance with these provisions.
AB 1221 (Gonzalez Fletcher) – Responsible Beverage Service Training Program Act of 2017 CMA Position: Sponsor Establishes the Responsible Beverage Service (RBS) Training Program Act of 2017, and requires the Department of Alcoholic Beverage Control, on or before January 1, 2020, to develop, implement, and administer a curriculum for an RBS training program. Beginning July 1, 2021, requires an alcohol server to successfully complete an RBS training course offered or authorized by the department. Authorizes the department to charge a fee, not to exceed $15, for any RBS training course provided by the department and require the fee to be deposited in the Alcohol Beverage Control Fund.
SB 239 (Wiener) – HIV and AIDS: criminal penalties CMA Position: Support
Modifies criminal penalties related specifically to human immunodeficiency virus (HIV) that imposed stricter criminal penalties to individuals infected with HIV in comparison to other communicable diseases. Repeals provisions making the intentional exposure to another person by a person who has tested positive for HIV a felony. Eliminates criminal penalties specific to HIV-infected individuals and instead makes the intentional transmission of an infectious or communicable disease a misdemeanor if specified circumstances apply.
SB 536 (Pan) – Firearm Violence Research Center: gun violence restraining orders
WORKFORCE & OFFICE SAFETY ISSUES AB 461 (Muratsuchi) – Personal income taxes: exclusion: forgiven student loan debt CMA Position: Support Excludes from gross income, for taxable years beginning on or after January 1, 2017, and before January 1, 2022, student loan debt, which may include a medical school loan, that is cancelled under specified repayment plans for public service and other employees administered by the United States Secretary of Education.
SB 63 (Jackson) – Unlawful employment practice: parental leave
CMA Position: Support Requires the state Department of Justice (DOJ) to make information related to gun-violence restraining orders that is maintained in the California Restraining Order and Protective Order System or any similar database maintained by DOJ available to researchers affiliated with the University of California’s Firearm Violence Research Center, or, at the discretion of DOJ, any other entity that is concerned with the study and prevention of violence, for academic and research purposes.
CMA Position: Support Requires specified employers to allow specified employees to take up to 12 weeks of parental leave within one year of a child’s birth, adoption, or foster care placement. Prohibits an employer from refusing to maintain and pay for coverage under a group health plan for an employee who takes this leave. Does not apply to employees subject to both state and federal laws regarding family and medical leave.
WORKERS’ COMPENSATION
SB 179 (Atkins) – Gender identity: female, male, or nonbinary
SB 189 (Bradford) – Workers’ compensation: definition of employee CMA Position: Sponsor Provides clarification to AB 2883 (Insurance Committee, 2016) which allowed shareholder employees with at least a 15 percent ownership stake in a corporation to exempt themselves from workers’ compensation coverage. This bill reduces the ownership threshold for an officer or member of the board of directors who wishes to waive workers’ compensation coverage to 10 percent. Expands the grounds for waiving workers’ compensation coverage to include owners of a professional corporation if the owner is a practitioner of the professional services for which the professional corporation was created and the owner is covered by a health insurance policy or health care service plan. Expands the grounds for waiving workers’ compensation coverage to board members of worker-owned cooperatives and to closely-held family businesses.
SB 489 (Bradford) – Workers’ compensation: change of physician CMA Position: Support Extends the timeline for submitting claims related to emergency medical treatment to the employer, or its insurer or claims administrator in workers’ compensation system 30 days to 180 days from the date the service was provided to the injured worker.
14 | THE BULLETIN | JANUARY / FEBRUARY 2018
Provides for a third gender option on the state driver’s license, identification card, and birth certificate. Restructures the process for individuals to change their name to conform with their gender identity, and amends procedures for an individual to secure a court-ordered change of gender. The provisions of this bill are effective September 1, 2018.
SB 396 (Lara) – Employment: gender identity, gender expression, and sexual orientation Requires specified employers to include, as a part of existing required sexual harassment training, training on harassment based on gender identity, gender expression, and sexual orientation. Requires employers to post a poster developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace.
These are just a sampling of the new laws impacting health care in 2018 and beyond. For a comprehensive list, see “Significant New California Laws of Interest to Physicians for 2018,” in the California Medical Association’s online resource library at www.cmanet.org/resource-library.
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November 2017
Guidelines for the Recommendation of Cannabis for Medical Purposes MEDICAL BOARD OF CALIFORNIA Edmund G. Brown, Jr., Governor Dev GnanaDev, M.D., President, Medical Board of California Kimberly Kirchmeyer, Executive Director, Medical Board of California Reprinted With Permission From the Medical Board of California
16 | THE BULLETIN | JANUARY / FEBRUARY 2018
Medical Board of California’s
Guidelines for the Recommendation of Cannabis for Medical Purposes November 2017
PREAMBLE The Medical Board of California (Board) developed these guidelines since cannabis is a permissible treatment modality in California under qualifying circumstances. The Board wants to assure physicians who choose to recommend cannabis for medical purposes to their patients, as part of their regular practice of medicine, that they will not be subject to investigation or disciplinary action by the Board if they arrive at the decision to make this recommendation in accordance with accepted standards of medical responsibility. The mere receipt of a complaint that the physician is recommending cannabis for medical purposes will not generate an investigation absent additional information indicating that the physician is not adhering to accepted medical standards. These guidelines are not intended to mandate the standard of care. The Board recognizes that deviations from these guidelines may occur and may be appropriate depending upon the unique needs of individual patients. Medicine is practiced one patient at a time and each patient has individual needs and vulnerabilities. Physicians should document their rationale for each recommendation decision. BACKGROUND On November 5, 1996, the people of California passed Proposition 215. Through this Initiative Measure, Section 11362.5 was added to the Health and Safety Code, and is also known as the Compassionate Use Act of 1996 (Act). The purposes of the Act include, in part: "To ensure that seriously ill Californians have the right to obtain and use cannabis for medical purposes where the medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of cannabis in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which cannabis provides relief; and To ensure that patients and their primary caregivers who obtain and use cannabis for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction."
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The Act provides that physicians will not be subject to investigation or disciplinary action by the Board if they arrive at the decision to make this recommendation in accordance with accepted standards of medical responsibility. Although the Act allows the use of cannabis for medical purposes by a patient upon the recommendation of a physician, California physicians should bear in mind that cannabis is listed in Schedule I of the federal Controlled Substances Act. Based on the increasing number of states permitting the recommendation of cannabis in patient care, the U.S. Department of Justice updated its cannabis enforcement policy in August 2013 (James M. Cole, "Guidance Regarding Cannabis Enforcement [Memorandum]," Washington, DC: Department of Justice. (August 19, 2013)). This policy reiterates cannabis's classification as an illegal substance under federal law, but advises states and local governments that authorize cannabis-related conduct to implement strong and effective regulatory and enforcement systems to address any threat state laws could pose to public safety, public health, and other interests. Should these state efforts be insufficient, the federal government may seek to challenge the regulatory structure itself and bring forward individual enforcement actions including criminal prosecutions, focused on those harms. In this context, the United States Department of Justice advised that it likely was not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals, or on their individual caregivers. In doing so, the guidance drew a distinction between the seriously ill and their caregivers, on the one hand, and large-scale, for-profit commercial enterprises, on the other, and advised that the latter continued to be appropriate targets for federal enforcement and prosecution. GUIDELINES The Board has adopted the following guidelines for the recommendation of cannabis for medical purposes. Physician-Patient Relationship: The health and well-being of patients depends upon a collaborative effort between the physician and the patient. The relationship between a patient and a physician is complex and based on the mutual understanding of the shared responsibility for the patient’s health care. The physician-patient relationship is fundamental to the provision of acceptable medical care. Therefore, physicians should document that an appropriate physician-patient relationship has been established, prior to providing a recommendation, attestation, or authorization for cannabis to the patient. Consistent with the prevailing standard of care, physicians should not recommend, attest, or otherwise authorize cannabis for themselves or family members. Pursuant to Business and Professions (B&P) Code section 2525.2, a physician shall not recommend cannabis for medical purposes to a patient, unless the physician is the patient’s attending physician. Health and Safety (H&S) Code section 11362.7(a) defines an “attending physician” as a physician who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient. The physician must also have conducted a medical examination of the patient before recording in the patient’s medical record the physician’s assessment of whether the patient has a serious medical condition and whether the use of cannabis for medical purposes is appropriate. Patient Evaluation: A documented medical examination and collection of relevant clinical history commensurate with the presentation of the patient must be obtained before a decision is Page |2 18 | THE BULLETIN | JANUARY / FEBRUARY 2018
made as to whether to recommend cannabis for a medical purpose. The examination must be an appropriate prior examination, and at minimum, should include the patient’s history of present illness; social history; past medical and surgical history; alcohol and substance use history; family history with emphasis on addiction, psychotic disorders, or mental illness; documentation of therapies with inadequate response; and diagnosis requiring the cannabis recommendation. At this time, there is a paucity of evidence for the efficacy of cannabis in treating certain medical conditions. Recommending cannabis for any medical conditions, however, is at the professional discretion of the physician acting within the standard of care. The indication, appropriateness, and safety of the recommendation should be evaluated in accordance with standards of practice as they evolve over time. The initial evaluation for the condition that cannabis is being recommended must meet the standard of care; accepted standards are the same as any reasonable and prudent physician would follow when recommending or approving any other medication. It is important to note that B&P Code section 2525.3 states that physicians recommending cannabis to a patient for a medical purpose without an appropriate prior examination and a medical indication, constitutes unprofessional conduct. The use of telehealth in compliance with B&P Code section 2290.5, and used in a manner consistent with the standard of care is permissible. Informed and Shared Decision Making: The decision to recommend cannabis should be a shared decision between the physician and the patient. The physician should discuss the risks and benefits of the use of cannabis with the patient. (See Decision Tree in Appendix 1) Patients should be advised of the variability and lack of standardization of cannabis preparations, as well as the issue that it affects individuals differently. Patients should be reminded that cannabis use may result in cognitive changes that affect function, including driving, and that they should not drive, operate heavy machinery, or engage in any hazardous activity while under the influence of cannabis. As with any medication, patients may be charged with driving under the influence of drugs if they drive while impaired by the substance. If the patient is a minor or without decisionmaking capacity, the physician should ensure that the patient’s parent, guardian or surrogate is fully informed of the risks and benefits of cannabis use, is involved in the treatment plan, and consents to the patient’s use of cannabis. Treatment Agreement: Treatment plans with objectives should be established with the patient as early as possible in the treatment process and revisited regularly, so as to provide clear-cut, individualized objectives to guide the choice of therapies, both pharmacologic and nonpharmacologic. It also should specify measurable goals and objectives that will be used to evaluate treatment progress, such as relief of pain and improved physical and psychosocial function. The plan should document any further diagnostic evaluations, consultations or referrals, or additional therapies that have been considered. The treatment plan should also include an “exit strategy” for discontinuing cannabis use in the event tapering or termination of cannabis use becomes necessary.
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A physician should document a written treatment plan that includes: • Advice about other options for managing the terminal or debilitating medical condition (pursuant to the Act conditions include cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which cannabis provides relief). • Determination that the patient with a terminal or debilitating medical condition may benefit from the recommendation of cannabis. • Advice about the potential risks of the medical use of cannabis and reminders to safeguard the cannabis, including but not limited to, the following: o The variability of quality and concentration of cannabis; o The risk of cannabis use disorder; o Potential adverse events, such as exacerbation of psychotic disorder, adverse cognitive effects for children and young adults, falls or fractures, and other risks; o Risks of using cannabis during pregnancy or breast feeding; o The need to safeguard all cannabis and cannabis-infused products from children, pets, or domestic animals; and o The reminder that the cannabis is for the patient’s use only and the cannabis must not be sold, donated, or otherwise supplied to another individual. • Additional diagnostic evaluations or other planned treatments. • A specific duration for the cannabis authorization for a period no longer than twelve months. • A specific ongoing treatment plan as medically appropriate. Qualifying Conditions: At this time, there is a lack of evidence for the efficacy of cannabis in treating certain medical conditions. Recommending cannabis for medical purposes is at the professional discretion of the physician. The indication, appropriateness, and safety of the recommendation should be evaluated in accordance with current standards of practice and in compliance with state laws, rules and regulations which specify qualifying conditions for which a patient may qualify for cannabis for medical purposes. The Compassionate Use Act names certain medical conditions for which cannabis may be useful, although physicians are not limited in their recommendations to those specific conditions (cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, and migraine). In all cases, the physician should base his or her determination on the results of clinical trials, if available, medical literature and reports, or on experience of that physician or other physicians, or on credible patient reports. In all cases, the physician must determine that the risk/benefit ratio of cannabis is as good, or better, than other treatment options that could be used for that individual patient. A patient need not have failed on all standard medications in order for a physician to recommend or approve the use of cannabis for medical purposes. Ongoing Monitoring and Adapting the Treatment Plan: The physician should regularly assess the patient’s response to the use of cannabis and overall health and level of function. This assessment should include any change in the overall medical condition, any change in the physical and psychosocial function, the efficacy of the treatment to the patient, the goals of the treatment, and the progress of those goals. Recommendations should be limited to the time necessary to appropriately monitor the patient. There should be a periodic review documented at least annually or more frequently as warranted. Page |4 20 | THE BULLETIN | JANUARY / FEBRUARY 2018
When a trial of cannabis for medical use is successful and the physician and patient decide to continue the use of cannabis, regular review and monitoring should be undertaken for the duration of treatment. Continuation, modification or termination of cannabis for medical use should be contingent on the physician’s evaluation of (1) evidence or the patient’s progress toward treatment objectives and (2) the absence of substantial risks or adverse events, such as diversion. A satisfactory response to treatment would be indicated by an increased level of function and/or improved quality of life. The physician should regularly assess the patient’s response to the use of cannabis. Consultation and Referral: A patient who has a history of substance use disorder or a cooccurring mental health disorder may require specialized assessment and treatment. The physician should seek a consultation with, or refer the patient to, a pain management physician, psychiatrist, psychologist, and/or addiction or mental health specialist, as needed. The physician should determine that cannabis use is not masking symptoms of another condition requiring further assessment and treatment (e.g., substances use disorder, or other psychiatric or medical condition) or that such use will lead to a worsening of the patient's condition. Medical Records: Proper record keeping and maintenance should support the decision to recommend the use of cannabis for medical purposes. B&P Code section 2266 requires a physician to maintain adequate and accurate medical records. Medical records need to be complete and legible. In addition, each entry should be dated and signed. Any changes, additions, and/or removal to the medical record made at a later date should also be dated and either signed or initialed. Information that should appear in the medical record includes, but is not limited to the following: • • • • • • •
The patient’s medical history, including a review of health risk factors and prior medical records as appropriate; Results of the appropriate prior examination, patient evaluation, diagnostic, therapeutic, and laboratory results; Other treatments and prescribed medications, including a review of the Controlled Substance Utilization Review and Evaluation System (CURES); Authorization, attestation or recommendation for cannabis, to include date, expiration, and any additional information required by state statute; Instructions to the patient, including discussions of risks and benefits, side effects and variable effects; Results of ongoing assessment and monitoring of patient’s response to the use of cannabis; A copy of a signed treatment agreement, including instructions on safekeeping and instructions on not sharing cannabis.
Physician Conflicts of Interest: B&P Code section 2525 includes a provision that makes it unlawful for a physician who recommends cannabis for a medical purpose to accept, solicit, or offer any form of remuneration from or to a facility, as defined, if the physician or his or her immediate family have a financial interest in that facility. A violation of this law is a
Page |5 JANUARY / FEBRUARY 2018 | THE BULLETIN | 21
misdemeanor punishable by up to one year in county jail and a fine of up to five thousand dollars or by civil penalties of up to five thousand dollars and constitutes unprofessional conduct. “Financial Interest” includes, but is not limited to, any type of ownership interest, debt, loan, lease, compensation, remuneration, discount, rebate, refund, dividend, distribution, subsidy, or other form of direct or indirect payment, whether in money or otherwise, between a licensee and a person or entity to whom the licensee refers a person for a good or service. For further information on the full definition of “financial interest” see B&P Code section 650.01. Additionally, B&P Code section 2525.4 indicates that it is unprofessional conduct for any attending physician recommending cannabis for medical purposes to be employed by, or enter into any other agreement with any person or entity dispensing cannabis for medical purposes. Accordingly, a physician who recommends cannabis should not have a professional office located at a dispensary or cultivation center or receive financial compensation from or hold a financial interest in a dispensary or cultivation center. Nor should the physician be a director, officer, member, incorporator, agent, employee, or retailer of a dispensary or cultivation center. A cannabis clinic or dispensary may not directly or indirectly employ physicians to provide cannabis recommendations.
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Appendix 1: Decision Tree PATIENT WITH PERSISTING NEUROPATHIC PAIN NO
YES
OTHER EVALUATION AND REFERRAL
GOOD RESPONSE TO NON-PHARMACOLOGICAL TREATMENT NO
YES
STANDARD RX
CONTINUE NON-PHARMACOLOGICAL TREATMENT
NO
YES
GET STANDARD RX
GOOD RESPONSE TO STANDARD RX NO
YES
WILLING TO CONSIDER CANNABIS
CONTINUE STANDARD RX
NO
YES
NO
BEGIN CANNABIS RX; PATIENT EDUCATION RE RISKS, BENEFITS, NON DIVERSION
MONITOR FOR EFFICACY, SIDE EFFECTS, DIVERSION
DETERMINE RISK E.G., SUBSTANCE ABUSE, MOOD DISORDERS
YES
COORDINATE WITH APPROPRIATE SUBSTANCE ABUSE OR PSYCHIATRIC RESOURCE
RISK/BENEFIT FAVORABLE, COORDINATED WITH CARE
RISK/BENEFIT UNFAVORABLE, NOT A CANDIDATE
JANUARY / FEBRUARY 2018 | THE BULLETIN | 23
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Your Baby’s Car Seat Can Now Be Free of Toxic Flame Retardants
T
Cindy Russell, MD VP of Community Health, SCCMA
that still meets the standards – Good news for parents who want to opt out of toxins in their car seats, crib mattresses and couches. Because these chemicals are persistent organic pollutants, and still in older cars and carpet pads, however, we still have them in our bodies and throughout the environment, but levels are going down.
oxic flame retardants have been used for decades in all “Flame retardants provide MILLIONS OF POUNDS furniture cushions and baby OF FLAME RETARDANTS an essential tool to enable car seats in response to the strictest flame manufacturers of products to meet USED retardant standard in the U.S., CaliforCalifornia is the only state to have nia’s Technical bulletin or TB117. Ad- the fire safety codes and standards such a flame standard but because comopted in 1975, the flame ignition standard pliance is mandatory for all products sold necessary to protect life and requires polyurethane foam in juvenile in California, many national and internaproducts and upholstered furniture to property in a modern world,” tional furniture manufacturers have used withstand exposure to a small open flame John Gustavsen, a Chemtura spokesman (3) this standard for all of their furniture to for 12 seconds. In 2014 after much lobbyavoid maintaining a double inventory and liability. Since 1975, hundreds ing by researchers, academics, non-profit environmental groups and with of millions of pounds of bio-persistent and toxic flame retardants have input from the CMA, the law was changed to allow a non-toxic alternative been added to furniture to make the content 3% to 5% in the foam. My
26 | THE BULLETIN | JANUARY / FEBRUARY 2018
couch, when tested by chemist Arlene Blum, was 4.6% PBDE.
Medical Association Environmental Health Committee wrote the resolution and brought it to the House of Delegates. FLAME RETARDANTS STICK AROUND The added momentum turned the tide and California passed an These chemicals do not stay in furniture, however, but easily miamendment to the flammability standard grate through the fabric, in the air, on to your as TB117-2013. This allows for non“THE STATE OF CALIFORNIA known clothes and in house dust. They are consistoxic alternative fill material with low flamtently found in washing machine effluent HAS UPDATED THE mability to be used without flame retardants. and in sewage treatment plants as a contamiSince 2013, the law and furniture tags have FLAMMABILITY STANDARD nant. A class of chemicals and the most used been updated giving manufacturers and conAND DETERMINED THAT THE sumers a real choice. flame retardants, PBDE’s, are persistent bioaccumulative toxins stored in fat and breast FIRE SAFETY REQUIREMENTS REGULATION WORKS milk. A UCSF study, in 2011, found that pregFOR THIS PRODUCT CAN BE Regulation of toxic chemicals can make nant women in California had the highest levels of PBDE’s worldwide. (7) Seagull, bald MET WITHOUT ADDING FLAME a measureable difference in reducing their levels in the environment and human expoeagle and peregrine falcon eggs all have high RETARDANT CHEMICALS. sure over time. Considering that toxins travel levels as well. PBDE’s are a global contamiTHE STATE HAS IDENTIFIED and have no geographic boundaries, reducnant in air, soil and living organisms. (5,6,9) tion of environmental toxins is a long term soMANY FLAME RETARDANT PBDE’S BANNED cietal strategy and investment in cleaner waCHEMICALS AS BEING BUT REPLACED WITH ter, environmental sustainability, a healthier OTHER TOXIC FLAME KNOWN TO, OR STRONGLY population, reduction in personal suffering RETARDANTS SUSPECTED OF, ADVERSELY and lower healthcare costs. Focusing on safer In 2004, Penta BDE was banned in Calito industrial toxins and processIMPACTING HUMAN HEALTH alternatives fornia and in 2011 Deca BDE was phased es makes it easier to extract ourselves from out due to research finding these were endoOR DEVELOPMENT” this chemical “Whack-A-Mole” game we are crine disruptors adversely affecting thyroid 2014 Furniture Tag often unknowingly immersed in with consehormone function, the immune system, requences surfacing well after our game is over. production and neurodevelopment. PBDE’s were globally banned by the 1. You Asked: Can My Couch Give Me Cancer? Time. Aug 24, Stockholm Convention in 2009. Manufacturers however replaced these 2016. http://time.com/4462892/couch-cancer-flame-retardants/ with other toxic but somewhat less persistent chemicals including Fire2. Green Science Policy Institute. http://greensciencepolicy.org/ master 550, a mix of chemicals found to be carcinogenic and neurotoxic. topics/furniture/ (10) TDCPP or chlorinated tris is also now widely used as a replacement 3. Playing With Fire. Chicago Tribune. 2012. http://media.apps. flame retardant. Chlorinated tris was banned from children’s pajama’s afchicagotribune.com/flames/index.html ter chemist Arlene Blum testified in congress in the 1960’s that TDCPP 4. State of California Department of Consumer Affairs http://www. was mutagenic. Unfortunately, the chemical has again returned for anothbearhfti.ca.gov/industry/label_examples.pdf 5. PBDEs in the San Francisco Bay Area: Measurements in er round of the toxic legacy game. It is on California’s Prop 65 list. These Harbor Seal Blubber and Human Breast Adipose Tissue. She alternative flame retardants also migrate out of the foam and into house J1 Chemosphere. 2002 Feb;46(5):697-707. https://www.ncbi.nlm. dust, which is thought to be the major route of exposure. Recent research nih.gov/pubmed/11999793 has shown TDCPP to be toxic to human kidney cells. (11) 6. Bald Eagles Prove Full of Flame Retardants: Michigan’s bald PLAYING WITH FIRE eagles may be getting flame retardants from old couches and More recently the lack of effectiveness of flame retardants in the deother discards. Feb 9, 2015. Scientific America. https://www. sign of the products was determined with a comparison kitchen fire test scientificamerican.com/article/bald-eagles-prove-full-of-flameretardants/ by the Consumer Product Safety Commission, showing no difference 7. Study Finds High Levels of Flame Retardant Chemicals in in flame spread or severity of the fire with or without flame retardants California Pregnant Women. August 10, 2011.UCSF News. added to the cushion padding. This was revealed in a 2012 investigative https://www.ucsf.edu/news/2011/08/10425/study-finds-high-levelsChicago Tribune 6-part series, “Playing with Fire.” (3) They highlighted flame-retardant-chemicals-california-pregnant-women industry deception using well-established tobacco tactics. Misleading re8. Flame Retardants: A Guide to Current State Regulations. https:// search funded by the chemical industry was disseminated. The Tribune www.stinson.com/Resources/Insights/2016_Insights/Flame_ also showed that the consumer organization, Citizens for Fire Safety, who Retardants__A_Guide_to_Current_State_Regulations.aspx promoted the use of flame retardants was only a chemical industry trade 9. Biomonitoring: Polybrominated Diphenyl Ethers (PBDEs) EPA. association front. https://www.epa.gov/sites/production/files/2015-05/documents/ biomonitoring-pbdes.pdf THE SCCMA AND CMA WEIGH IN ON 10. Flame Retardants in Furniture Foam: Benefits and Risks. 2011. FLAME RETARDANT STANDARDS Babruska, blum, Daley, Birnbaum http://greensciencepolicy.org/ In 2012, the California Medical Association also weighed in on this wp-content/uploads/2013/12/Babrauskas-and-Blum-Paper.pdf issue by passing Resolution 125-12: SAFER FURNITURE FLAMMA11. Flame retardant tris (1,3-dichloro-2-propyl) phosphate (TDCPP) BILITY STANDARDS which would change the standard not to require toxicity is attenuated by N-acetylcysteine in human kidney harmful flame retardants yet provide more effective fire safety using barcells. 2017. Killilea,et al Toxicol Rep. 2017; 4: 260–264. https:// rier technology and flame resistant fabric covers. Our Santa Clara County www.ncbi.nlm.nih.gov/pmc/articles/PMC5615114/ JANUARY / FEBRUARY 2018 | THE BULLETIN | 27
Did You Know CMA’s Online Health Law Library is FREE to Members? CMA On-Call, the California Medical Association’s (CMA) online health law library, is fully updated for 2018. One of CMA’s most valuable member benefits, On-Call contains nearly 5,000 pages of up-to-date legal information on a variety of subjects of everyday importance to practicing physicians. The searchable online library contains all the information available in the California Physician’s Legal Handbook (CPLH), an annual publication from CMA’s Center for Legal Affairs. CMA On-Call documents are available free to members at www.cmanet.org/cma-on-call. Nonmembers can purchase documents for $2 per page. The complete health law library is also available for purchase in an 8-volume print set or annual online subscription service. To order your copy, visit the CMA resource library or call (800) 882-1262. On the following pages we feature some of the most commonly accessed documents from the CMA On-Call library.
RETENTION OF MEDICAL RECORDS
California regulations regarding retention of medical records in a physician’s office are a perennial hot topic in CMA’s On-Call health law library. To ensure physicians understand their rights and obligations under the law, CMA On-Call document #4005, “Retention of Medical Records,” discusses major issues raised by the retention, abandonment, theft and destruction of medical or health insurance information and physician practice business records. Issues covered include statutory record retention requirements, the rules applicable to records abandoned in bankruptcy 28 | THE BULLETIN | JANUARY / FEBRUARY 2018
or otherwise, recommended retention periods, options for record management on the sale or closing of a medical practice, record destruction requirements, obligations for safeguarding patients’ personal information, and for responding when records containing identifying information are stolen or otherwise breached.
TERMINATION OF THE PHYSICIAN-PATIENT RELATIONSHIP
Once a physician-patient relationship is established, the physician has an ongoing responsibility to the patient until the relationship is terminated. To help physicians understand their legal and ethical obligations related to terminating the physician-patient relationship, CMA On-Call document #3503, “Termination of the Physician-Patient Relationship” discusses how a physician-patient relationship can be terminated in a way that will not create liability for patient abandonment. CMA has also published On-Call document #3500, “Establishment of the Physician-Patient Relationship,” which discusses a physician’s right to select or reject patients.
CONTRACT TERMINATION BY PHYSICIANS AND CONTINUITY OF CARE PROVISIONS
Physicians may decide to terminate their payor contracts for various reasons, including non-payment. This has been particularly true in recent years with the insolvencies of health plans, IPAs and other entities that contract with health plans. Contract termination should, however, be executed by physicians with caution and in a legally appropriate manner.
To help physicians understand how to terminate managed care contracts, and the resulting continuity of care obligations that may apply, CMA published On-Call document #7051, “Contract Termination by Physicians and Continuity of Care Provisions.” This document discusses the usual ways that contracts provide for termination and the laws regarding managed care contract termination.
PATIENT ACCESS TO MEDICAL RECORDS
Patients (or their legal representatives) generally have a right to inspect and copy their medical records. In addition to California law, the federal HIPAA regulations provide additional patients’ rights with regard to their medical records. To help physicians understand patients’ rights to access their medical records, see CMA On-Call document #4205, “Patient Access to Medical Records.”
MEDICAL RECORDS: MOST COMMONLY ASKED QUESTIONS
CMA published On-Call document #4000, “Medical Records: Most Commonly Asked Questions,” to provide physicians with answers and resources for the most commonly asked questions regarding medical records received by the CMA legal information line. The document includes the following information, along with references to relevant CMA OnCall documents: • How to respond to requests for medical information • Requirements for a valid authorization of medical record release • HIPAA privacy and security rules • Contents, retention and destruction of medical records • Reporting obligations
MEDICAL RECORDS: ALLOWABLE COPYING CHARGES
Physicians are often asked to provide copies of medical records to patients and third parties, which may be costly for their practices. CMA OnCall document #4002, “Medical Records: Allowable Copying Charges,” discusses the allowable amounts that a physician may charge for copies of medical records under various circumstances. These amounts depend on whether the records are requested by patients, patients’ attorneys, health plans and insurers, or government agencies. The document also describes what costs can be included in a copying charge in accordance with the
Health Insurance Portability and Accountability Act of 1996 (HIPAA Privacy Rule).
CALIFORNIA’S PRESCRIPTION DRUG MONITORING PROGRAM
California’s prescription drug monitoring program—the Controlled Substance Utilization Review and Evaluation System (CURES)—helps health care practitioners make appropriate prescribing decisions and assists law enforcement and regulatory agencies in their efforts to control the abuse and diversion of controlled substances. To help physicians understand their obligations and requirements when prescribing controlled substances, CMA published On-Call document #3212, “California’s Prescription Drug Monitoring Program: The Controlled Substance Utilization Review and Evaluation System (CURES).” This document provides an overview of California’s prescription drug monitoring program and discusses legal requirements related to CURES, including a new law that requires physicians to consult the CURES database prior to prescribing a Schedule II through IV controlled substance. It also includes details on how to register, what data physicians must provide, what information they will have access to and any relevant liabilities.
PRACTICE PROMOTION THROUGH THIRDPARTY COUPONS
Some physicians may choose to offer discounts for their medical services through Internet-based e-commerce marketplaces, such as Groupon or Living Social, which allow consumers to purchase coupons and vouchers for discounted services. Using these third-party ecommerce platforms may help the physician’s practice gain exposure and help the physician build a patient base. Until recently, however, such arrangements put physicians at risk of scrutiny as a violation of state and federal fee-splitting prohibitions, since California law prohibits physicians from paying for patient referrals. In 2017, a new law took effect (AB 2744) to more clearly distinguish referrals from advertising. The legislation permits California health care providers to advertise their services through third-party companies that sell discounted coupons and vouchers to consumers in exchange for a fee. CMA On-Call document #0104, “Practice Promotion through Third-
Continued on page 30 JANUARY / FEBRUARY 2018 | THE BULLETIN | 29
Party Coupons,” further explains the provisions of AB 2744, the services that physicians can legally advertise and payment with third-party involvement.
HIPAA OVERVIEW AND ENFORCEMENT
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) includes six rules to improve the efficiency and effectiveness of the health care system while protecting patient privacy: • Privacy Rule • Security Rule • Breach Notification Rule • Uniform National Standards for Electronic Transactions and Code Sets • Unique Health Identifier Standards • Enforcement Rule These rules are outlined in CMA On-Call document #4100,”HIPAA Overview & Enforcement.” The document describes the provisions of HIPAA and the Health Information Technology for Economic and Clinical Health (HITECH) Act. It also provides information and resources for physicians to ensure that their practices are HIPAA-compliant.
BUSINESS ASSOCIATE AGREEMENTS
The HIPAA Privacy and Security rules permit covered physicians to disclose “protected health information” (PHI) to business associates. These business associates are authorized to create, receive, maintain or transmit PHI so long as safeguarding assurances are obtained through a business associate agreement. CMA On-Call document #4103, “Business Associate Agreements,” provides physicians with a better understanding of these agreements. The document discusses: • HIPAA requirements • The California Confidentiality of Medical Information Act • Additional privacy and security obligations under the HITECH Act • Business associate agreement requirements and enforcement • Business associates defined • CMA as a business associate
MACRA OVERVIEW
The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) restructures reporting of health care quality and reforms the way physicians and other clinicians are paid under Medicare Part B. MACRA aims to provide stable payment updates, reduce the quality reporting program burdens, reinstate bonus payments, and incentivize innovative, physician-led alternative payment models. To provide physicians with an overview of the new payment models, the California Medical Association has published On-Call document #7210, “MACRA Overview.” The document outlines the following MACRA programs: • Quality Payment Program • Merit-Based Incentive Payment System • Alternative Payment Models • Advanced Alternative Payment Models • Medical Home Models • Physician-Focused Payment Models
NON-CONTRACTING PHYSICIANS
On July 1, 2017, a new law (AB 72) took effect that changes the billing practices of non-participating physicians providing non-emergent care at in-network facilities including hospitals, ambulatory surgery centers and laboratories. The law was designed to reduce unexpected medical bills when patients go to an in-network facility but receive care from an out30 | THE BULLETIN | JANUARY / FEBRUARY 2018
of-network doctor. While patients with out-of-network benefits can consent to treatment from out-of-network providers, absent a valid consent form, health plans and insurers are required to reimburse out-of-network physicians at an interim payment rate. The interim rate is the greater of 125 percent of Medicare or the plan/insurer’s average contracted rate. CMA On-Call document #7508, “Non-Contracting Physicians,” has been updated to explain the circumstances under which the law applies and how to dispute the payment amount.
THE CALIFORNIA END OF LIFE OPTION ACT
On October 5, 2015, California passed the “End of Life Option Act,” which permits physicians to prescribe aid-in-dying medication to terminally ill adult patients with the capacity to make medical decisions. To help physicians understand their rights and responsibilities regarding this legislation, CMA published On-Call document #3459, “The California End of Life Option Act.” This document discusses the requirements of the “End of Life Option Act,” describing circumstances that qualify a patient to receive aid-in-dying medication, necessary documentation for the procedure and protections for physicians that choose to provide this service.
THE CORPORATE PRACTICE OF MEDICINE BAR
California law prohibits lay individuals, organizations and corporations from practicing medicine. This prohibition, known as the “corporate bar,” generally prohibits lay entities from hiring or employing physicians or other health care practitioners, or from otherwise interfering with a physician or other health care practitioner’s practice of medicine. It also prohibits most lay individuals, organizations and corporations from engaging in the business of providing health care services indirectly by contracting with health care professionals to render such services. CMA steadfastly supports our state’s corporate bar, and strongly believes medical decision makers should be insulated from influence by laypersons who may not have patients’ best interests at heart. For more information on California’s corporate bar, see CMA OnCall document #0200, “Corporate Practice of Medicine Bar.”
CONFIDENTIALITY OF MEDICAL INFORMATION: CMIA, IIPPA AND THE HIPAA PRIVACY RULE
There are protections under both California and federal law for the confidentiality of medical information. As a general rule, medical information may not be disclosed absent the written consent of the patient or a legal representative. Regulations and exceptions regarding access to medical information are detailed in the Confidentiality of Medical Information Act (CMIA), Health Insurance Portability and Accountability Act of 1996 (HIPAA), and Insurance Information and Privacy Protection Act (IIPPA). CMA has summarized these laws in On-Call document #4207,”Requests by Other Third Parties: CMIA, IIPPA and the HIPAA Privacy Rule.” The document describes the information protected under each law, prohibited actions and requirements for a valid authorization of medical information release. It also explains to whom these laws apply and relevant physician obligations.
All of the documents referenced in this article are available through CMA On-Call, the California Medical Association’s online health law library. CMA On-Call is free to members at www.cmanet.org/ cma-on-call. Nonmembers can purchase documents for $2/page.
Presents:
Wednesday, April 18, 2018 CMA’s 44th Annual Legislative Advocacy Day Sheraton Grand Ballroom 1230 J Street, Sacramento, CA Tentative Agenda: • 8:00 a.m. Registration & Continental Breakfast • 8:30 a.m. Social Media Training • 9:00 a.m. CMA Welcome & Remarks * Ted Mazer, MD, President, CMA * Dustin Corcoran, Chief Executive Officer, CMA • 9:45 a.m. Group in front of the State Capitol
• 10:00 a.m. Meetings with Legislators • 11:45 a.m. Buffet Lunch (Sheraton Grand) • 12:30 p.m. Announcements • 12:45 p.m. Political Panel/2018 Elections • 1:30 p.m. Meetings with Legislators (scheduled by Jean Boileau Cassetta)
In preparation for Legislative Advocacy Day, CMA’s Center for Government Relations will host a special webinar advocacy training on March 28, 2018, from 7 - 8:00 p.m. This webinar will review in detail CMA’s list of bills to be lobbied and effective advocacy tips, as well as covering other relevant program information. Register on CMANET.ORG
“FAX BACK” 408/289-1064 RSVP TODAY! MCMS/SCCMA Student, Resident, Alliance, and Physician members are invited to attend CMA’s 44th Annual Legislative Advocacy Day at the Sheraton Grand Hotel on Wednesday, April 18, 2018. We will meet with local legislators to discuss pending resolutions/bills that will affect the future of medicine. This is your chance to make your voice count and to see what CMA is doing for you! MCMS/SCCMA will provide transportation to and from Sacramento on a chartered bus. Breakfast and lunch also provided. (You can meet us there if you prefer.) To RSVP for Legislative Day and/or a seat on the chartered bus, please fax RSVP by 2-23-18 to Jean Boileau Cassetta 408/289-1064. (We will leave from the SCCMA parking lot at 6:00 a.m. and return at approx. 6:30 p.m. Seats are limited. Any questions, call Jean at 408/998-8850 Ext. 3010 or 831/455-1008 Ext. 3010
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❑ I will ride on the chartered bus JANUARY / FEBRUARY 2018 | THE BULLETIN | 31
Tip of the Month: Yes, you CAN make a difference. The
California Medical Association (CMA) is the largest, most influential medical organization in California and an aggressive advocate for doctors and patients. CMA relies on the involvement of its members to communicate the physician vision of medical care to the public, to lawmakers, and to the regulators who decide how medicine is practiced. CMA policy is set by members and is voted on by physician representatives who are elected to serve in the House of Delegates or on the Board of Trustees.
o o o o o o o o
Join the House of Delegates Develop CMA Policy Champion Community Health Improve Quality of Care Persuade Lawmakers Support CALPAC Get Media Training Encourage Membership
Thanks to the support of our 43,000 #CMADocs and #TeamCMA's hard work, it's been a banner year for the California Medical Association (CMA). Take a look back at the amazing things CMA accomplished in 2017. ⇒ Secured over $1 billion annually to improve provider payments and graduate medical education funding ⇒ Defended medical staff independence in “existential threat” lawsuit against the Tulare Regional Medical Center ⇒ Recouped nearly $1 million from payors on behalf of physician members ⇒ Expanded member insurance program with state-approved workers comp coverage, new cyber liability program and personal insurance products ⇒ Convinced CMS to further reduce 2018 MACRA reporting burdens. ⇒ Defeated irresponsible federal legislation that would have harmed patient access to physicians, decreasing health care coverage ⇒ Stood in solidarity with California’s “Dreamers” and in support of diversity and inclusion ⇒ Developed AB72 and MACRA resource centers to educate members on rights and responsibilities
44th Annual CMA Legislative Advocacy Day – April 18, 2018 CMA House of Delegates – October 13-14, 2018
To join, call Leslie at 408.998.8850/831.455.1008 or email leslie@sccma.org 32 | THE BULLETIN | JANUARY / FEBRUARY 2018
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Alexander Fleming Discoverer of Penicillin By Michael Shea, MD Leon P. Fox Medical History Committee On a September afternoon in 1928, Alexander Fleming observed a blue spot growing on an agar petri dish. Around the blue spot was a clear zone where bacteria, growing on the plate could not survive. This was the serendipitous beginning of one of the most important discoveries in medical history, penicillin. The blue spot was a mold, named penicillin notatum, that prevented certain bacterial growth by interfering with the bacteria’s ability to maintain the integrity of its cell wall. This mold would become the first antibiotic used to directly kill bacteria, such as staphylococcus, streptococcus, meningococcus, and diphtheria bacillus, which were responsible for many human infections. Alexander Fleming was born on August 6, 1881 at Lochfield Farm, an isolated sheep farm near the town of Darvel in southwestern Scotland. He was the seventh of eight children. He ultimately attended St. Mary’s Hospital Medical School at the University of London. While at St. Mary’s, he won the 1908 gold medal award as the top medical student. After graduation, he was hired at the inoculation department at St. Mary’s Hospital, where he developed his research skills, under the guidance of immunologist, Sir Almroth Edward Wright. Dr. Wright’s ideas were focused on vaccine therapy, a relatively new direction in medical treatment. During WWI, Fleming served in the Royal Army Medical Corps. Stationed in France, he studied wound infections and found that antiseptic treatments, if used too vigorously interfered with the body’s defense mechanisms. His findings went largely unheeded and mortality rates from 34 | THE BULLETIN | JANUARY / FEBRUARY 2018
wound infections remained high. Returning to St. Mary’s after the war, Fleming became the assistant director of St. Mary’s Inoculation Department. (He would become professor of bacteriology at the University of London in 1928 and emeritus professor of bacteriology in 1948.) In 1921, Fleming discovered lysozyme, a mild antiseptic enzyme found in bodily fluids. This occurred when a drop of his own nasal mucus fell into a petri dish containing bacteria. Further experiments revealed the enzyme did destroy bacteria, but unfortunately only non-pathogens were affected. This was, however, a key discovery as it led to his interest in systemic treatment of bacterial infections. 1928’s blue mold discovery gave Dr. Fleming the opportunity to pursue his quest for systemic treatment. He first tested his “mold juice” of penicillin by placing it in the agar with pathogenic bacteria. The results looked exciting. “It looks as though we have a mold that can do something useful,” he commented to a colleague.
Needing a different form of penicillin to inject into animals, he turned to the chemists in his lab for help. Unfortunately, they could not improve on the purity of the penicillin mixture that Fleming was using. In 1929, Fleming’s report on penicillin as a powerful antibacterial substance was reported in a medical journal. This was largely ignored by the medical community at the time and this would turn out to be the end of Dr. Fleming’s active work on penicillin. Instead he turned his interest to the use of vaccines and sulfa, which was being used in treatment of some bacterial infections. He published several papers on this subject but did not pursue clinical research on his work perhaps because there were other scientists before him who had shown the benefit of sulfa. Sulfa is a bacteriostatic drug that relies on the body’s own defense mechanisms in order to fight infections. Thus the stage was still set for the advent of a bactericidal antibiotic. This would come not from Alexander Fleming but from two scientists a mere 50 miles down the road from St. Mary’s at a facility called Oxford. Howard Florey, an Australian pathologist, and Ernst Chain, a skilled biochemist, had read Fleming’s 1929 paper on penicillin and were anxious to take up where he had left off. Needing funding, Florey turned to the British Medical Research Council. Due to the impending war with Germany, he was turned down. Determined, he applied to the Rockefeller Foundation in New York City. The Foundation agreed to fund his work for five years. In the United States, the first work concentrated on increasing the amount of penicillin produced from the mold. Interestingly the major breakthrough came after finding a moldy cantaloupe in a Peoria Illinois fruit market. An even more productive mutant of the cantaloupe strain was produced with the use of x-rays at the Carnegie Institute. When the strain was exposed to ultraviolet radiation at the University of Wisconsin, productivity increased even further. Production went from being able to treat 170 cases in 1943 to 40,000 in 1944 and 250,000 in 1945. Animal and human testing was carried out in both England and the United States. All were successful. English Soldiers were cured of gonorrhea and in South Africa, British infected war wounds were likewise cured. After the war, the secret was out and penicillin quickly moved into the main stream. Fleming and the others became universal heroes. Fleming was given 25 honorary degrees, 26 medals, 13 decorations, and honorary membership in 89 academies and societies. Florey and Fleming were both knighted. In 1945, Florey, Fleming , and Chain were awarded the Nobel Prize for Physiology and Medicine. Fleming lost his wife, Sarah, in October 1949, after 34 years of marriage. They had one son, Robert, who became a physician. Several years
Sir Alexander Fleming later, Fleming married a fellow researcher in his lab, Dr. Amalia Voureka. She was an attractive Greek widow and shared his love of medicine. In January 1955, Alexander Fleming, age 77, retired as administrator of the St. Mary’s Institute. Just a few months later he died suddenly from a heart attack. Alexander Fleming was the first to recognize Penicillin as an antibiotic. He was also very willing to point to others, especially Florey and Chain, who followed his lead in developing penicillin to its full potential. The penicillin story remains one of the great landmarks in medical history.
Leon P. Fox Medical History Committee The Leon P. Fox Medical History Committee meets bi-monthly, the first Monday at noon (lunch provided). The purpose of the committee is to identify, collect, and preserve archival material, memorabilia, and artifacts representing the medical history of Santa Clara County. A guest speaker gives a historical presentation at each of the meetings, which is then transcribed for SCCMA’s Medical History archives. If you are interested in joining this committee, please contact Pam Jensen at SCCMA at (408) 998-8850 or pjensen@sccma.org.
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Apple Launches New App Featuring Patient’s Personal Health Record Apple recently announced that it is launching a personal health record (PHR) feature with iOS 11.3, the beta of which has already launched to users in Apple’s iOS Developer Program. Titled “Health Records,” the feature will aggregate existing patient-generated data in the Health app with data from a user’s electronic medical record if the user is a patient at a participating hospital. Apple is working with 12 hospitals across the country, including Cedars-Sinai in Los Angeles, Johns Hopkins, and Geisinger Health System. “Our goal is to help consumers live a better day,” Apple COO Jeff Williams said in a statement. “We’ve worked closely with the health community to create an experience everyone has wanted for years — to view medical records easily and securely right on your iPhone. By empowering customers to see their overall health, we hope to help consumers better understand their health and help them lead healthier lives.” Users will be able to see allergies, medications, conditions and immunizations, as well as lab results and similar information found in EHR patient portals. The data will be encrypted, requiring a password from users, and can send notifications when a hospital updates their data. “Putting the patient at the center of their care by enabling them to direct and control their own health records has been a focus for us at Cedars-Sinai for some time,” said Darren Dworkin, chief information officer at Cedars-Sinai, in a statement. “We are thrilled to see Apple taking the lead in this space by enabling access for consumers to their medical information on their iPhones. Apple is uniquely positioned to help scale adoption because they have both a secure and trusted platform and have adopted the latest industry
open standards at a time when the industry is well positioned to respond.” The new Health Records section is available to the patients of the following medical institutions as part of the iOS 11.3 beta. In the coming months, Apple plans for more medical facilities to connect to Health Records to offer their patients access to these features. • Johns Hopkins Medicine - Baltimore, Maryland • Cedars-Sinai - Los Angeles, California • Penn Medicine - Philadelphia, Pennsylvania • Geisinger Health System - Danville, Pennsylvania • UC San Diego Health - San Diego, California • UNC Health Care - Chapel Hill, North Carolina • Rush University Medical Center - Chicago, Illinois • Dignity Health - Arizona, California and Nevada • Ochsner Health System - Jefferson Parish, Louisiana • MedStar Health - Washington, D.C., Maryland and Virginia • OhioHealth - Columbus, Ohio • Cerner Healthe Clinic - Kansas City, Missouri Further information for health institutions is available at https://www.apple.com/healthcare/.
Public Health Employees to Visit Clinics to Promote HIV Prevention Given the rising rates of sexually transmitted diseases (STDs) in our area, the Public Health Department wants to offer you the tools to protect your patients from HIV and other STDs. Our Health Educators will be making 10- to 20-minute visits to clinics throughout the county to explore how we can collaborate to improve the sexual health of your patients. They will briefly talk to you and your clinic staff about pre-exposure prophylaxis (PrEP) and post-exposure prophylaxis (PEP), opt-out HIV testing, and sexual history taking and how to streamline these interventions in a busy practice. Please welcome them and let them know how Public Health can best support you and your clients. 36 | THE BULLETIN | JANUARY / FEBRUARY 2018
Major Employer Partnership Hopes to Disrupt the Healthcare Market After much speculation about Amazon eventually entering the healthcare market, it is doing so with a splash — and it is bringing JP Morgan Chase and Berkshire Hathaway along with it. The power-trio announced last month that they are partnering to tackle healthcare for their employees with the aim of improving satisfaction and reducing costs. The announcement indicated the three companies will pursue this objective through an independent company that is free from profit-making incentives and constraints. “The ballooning costs of healthcare act as a hungry tapeworm on the American economy. Our group does not come to this problem with answers. But we also do not accept it as inevitable. Rather, we share the belief that putting our collective resources behind the country’s best talent can, in time, check the rise in health costs while concurrently enhancing patient satisfaction and outcomes,” said Berkshire Hathaway Chairman and CEO, Warren Buffett. Tackling the enormous challenges of healthcare and harnessing its full benefits are among the greatest issues facing society today, the announcement continued. By bringing together three of the world’s leading organizations into this new and innovative construct, the group hopes to draw on its combined capabilities and resources to take a fresh approach
to these critical matters. “The initial focus of the new company will be on technology solutions that will provide U.S. employees and their families with simplified, highquality and transparent healthcare at a reasonable cost,” the companies said. “The healthcare system is complex, and we enter into this challenge open-eyed about the degree of difficulty,” said Jeff Bezos, Amazon founder and CEO. “Hard as it might be, reducing healthcare’s burden on the economy while improving outcomes for employees and their families would be worth the effort. Success is going to require talented experts, a beginner’s mind, and a long-term orientation.” “Our people want transparency, knowledge and control when it comes to managing their healthcare,” said Jamie Dimon, chairman and CEO of JPMorgan Chase. “The three of our companies have extraordinary resources, and our goal is to create solutions that benefit our U.S. employees, their families and, potentially, all Americans,” he added. While the effort is in its early planning stages and few details were offered, the announcement was met with widespread media buzz and caused an immediate dip in healthcare stocks such as Express Scripts Holding Co., CVS Health Corp. and Aetna.
2017 Sees for First Time More Women than Men Enroll in U.S. Medical Schools For the first time, the number of women enrolling in U.S. medical schools has exceeded the number of men, according to new data released by the Association of American Medical Colleges (AAMC). According to the study, females represented 50.7% of the 21,338 matriculants (new enrollees) in 2017, compared with 49.8% in 2016. Female matriculants increased by 3.2% this year, while male matriculants declined by 0.3%. Since 2015, the number of female matriculants has grown by 9.6%, while the number of male matriculants has declined by 2.3%. Overall, the number of matriculants in U.S. medical schools rose by 1.5% this year, and total enrollment stands at 89,904 students. “We are very encouraged by the growing number of women enrolling in U.S. medical schools,” AAMC President and Chief Executive Officer Darrell G. Kirch, MD, said in a news release. “This year’s matriculating class demonstrates that medicine is an increasingly attractive career for women and that medical schools are creating an inclusive environment. While we have much more work to do to attain broader diversity among our students, faculty and leadership, this is a notable milestone,” said Dr. Kirch. In contrast, the number of applicants to medical school declined by 2.6% from 2016. Although this is the largest decrease in 15 years, it is not the first; previous declines occurred in 2002 and 2008. As with matriculants, there was a significant difference by sex: The number of female applicants declined by 0.7%, while male applicants fell 4.4%. Since 2015, the number of female applicants has increased by 4.0%, while the number of male applicants has declined 6.7%. While the majority of matriculants this year were female, males remained a slight majority (50.4%) of applicants. As in past years, the academic credentials and experience of medical school applicants in 2017 remain very strong: • 77% reported volunteer community service in a medical or clinical
setting. • 77% reported already having research experience. • The average undergraduate GPA of applicants increased slightly to 3.56; the median MCAT score was 505. Despite this year’s decline, the overall number of medical school applicants has increased more than 50% since 2002, and the number of matriculants has grown by nearly 30% over the last 15 years. Twenty-two new medical schools have opened since 2007, including two in the last year, at the University of Nevada, Las Vegas, and Washington State University. Among matriculants in 2017, 8.7% attend one of these 22 schools. Entering classes at the nation’s medical schools continue to diversify. From 2015 to 2017, black or African-American matriculants increased by 12.6%, and matriculants who were Hispanic, Latino or of Spanish origin rose by 15.4%. Additionally, an AAMC annual survey of matriculating medical students found: • More students indicated that having a work-life balance rather than a “stable, secure future” or the “ability to pay off debt” was an “essential consideration” in their career paths after medical school. • Nearly 30% of new medical students indicated plans to eventually work in an underserved area. However, Dr. Kirch cautioned, “while expanding medical school enrollment is a very positive trend, it alone will not lead to an increase in the supply of practicing physicians to address the coming doctor shortage. For that to happen, Congress must lift the cap on federal support for medical residency positions it enacted 20 years ago. Bipartisan legislation to increase federal support for residency training has been introduced in both the House and Senate. Given our growing and aging population, the AAMC urges Congress to pass this legislation so that future patients will have access to the care they’ll need.” JANUARY / FEBRUARY 2018 | THE BULLETIN | 37
HHS Expands Protections for Physicians With Moral Objections The U.S. Department of Health and Human Services (HHS) announced last month that it will form a Conscience and Religious Freedom Division of the HHS Office for Civil Rights (OCR) to review complaints from doctors, nurses and others under 25 existing statutes, most of which allow workers to opt out of procedures like abortion, assisted suicide and sterilization. In addition, HHS released a proposed rule that would expand existing protections for physicians and other providers who object to performing certain healthcare procedures including those related to abortion, sterilization, assisted suicide and the performance of advance directives. “America’s doctors and nurses are dedicated to saving lives and should not be bullied out of the practice of medicine simply because they object to performing abortions against their conscience,” said OCR Director Roger Severino in the announcement. “Conscience protection is a civil right guaranteed by laws that too often haven’t been enforced. Today’s proposed rule will provide our new Conscience and Religious Freedom Division with enforcement tools that will make sure our conscience laws are not empty words on paper, but guarantees of justice to victims of unlawful discrimination.” “Today’s actions represent promises kept by President Trump and a rollback of policies that had prevented many Americans from practicing their profession and following their conscience at the same time,” said Acting HHS Secretary Eric D. Hargan. “Americans of faith should feel at home in our health system, not discriminated against, and states should have the right to take reasonable steps in overseeing their Medicaid programs and being good stewards of public funds.” Citing protection of workers’ religious freedom, religious liberty groups have lauded the move, while critics have expressed concern that the practical effect will be increased discrimination against certain patients, specifically women and LGBT individuals. 38 | THE BULLETIN | JANUARY / FEBRUARY 2018
According to Wired, there are concerns about data collection as well, reporting that data collection for these groups has slowed under the Trump administration: The new HHS office threatens data and understanding. Collecting facts and figures on sexual orientation and gender identity fills valuable gaps in the medical community’s comprehension of LGBT patients and their public health needs, and progress on that front has accelerated in recent years. “Gathering these details has tremendous potential to improve care for LGBT people,” says psychologist Ed Callahan, who in 2015 helped orchestrate the addition of fields for sexual orientation and gender identity — aka “SO/GI”—to electronic health records at UC Davis, the first academic system in the country to do so. The more data doctors and policymakers have on LGBT people, the better they can understand the institutional hurdles, social challenges and public health risks they face as sexual minorities. In reaction to the announcements from HHS, CMA said, “The California Medical Association (CMA) and the American Medical Association (AMA) have long-standing policy supporting a woman’s access to reproductive services. We have also strongly supported access to care for patients who may experience discrimination when receiving medical care. CMA and AMA will be closely tracking the activities of this new division, and we will continue to defend access to women’s reproductive services and healthcare without discrimination. CMA and AMA are reviewing the proposed regulation in more detail and will keep physicians informed as the regulations are developed.” Per the announcement, the New Draft Conscience Regulation Includes: • The proposed rule provides practical protections for Americans’ conscience rights and is modeled on existing regulations for other civil rights laws. • The laws undergirding the proposed regulation include the Coats-Snowe, Weldon, and Church Amendments, as well as parts of Medicare, Medicaid, the Affordable Care Act, and others (25 statutes in total). • The proposed rule applies to entities that receive funds through programs funded or administered in whole or in part through HHS. • The proposed rule requires, for instance, that entities applying for federal grants certify that they are complying with the above-mentioned conscience-protection statutes. • Since President Trump took office, OCR has stepped up enforcement of these conscience statutes, many of which saw little to no enforcement activity under the previous administration. • The proposed rule includes a public comment period of 60 days. • The proposed rule follows the announcement the day before of a new Conscience and Religious Freedom Division in OCR, charged with implementing the proposed regulation as finalized and enforcing statutes that protect individuals and organizations from being compelled to participate in procedures such as abortion, sterilization, and assisted suicide when it would violate their religious beliefs or moral convictions.
Health IT Now Launches Alliance to Fight Opioid Addiction Using Health Information Technology Health IT Now – a broad-based coalition of patient groups, provider organizations, employers and payers supporting health information technology to improve patient outcomes – recently announced the launch of its Opioid Safety Alliance. The first-of-its-kind working group, composed of Health IT Now (HITN) members and non-members alike, is dedicated to advancing technology-enabled solutions to combat the scourge of opioid misuse. Leading member organizations of the Opioid Safety Alliance include the Association of Behavioral Health and Wellness, Brain Injury Association of America, Centerstone, Chapman University School of Pharmacy, CoverMyMeds, eRx Network, IBM, Intermountain Healthcare, McKesson, National Alliance on Mental Illness, the National Council for Prescription Drug Programs, Netsmart, Oracle, RelayHealth and Walgreens.
Opioid Safety Alliance members will advocate for reforms that include: • Enacting a Facilitator Model for Patient Safety: Opioid Safety Alliance members believe that more must be done to ensure clinicians have a full, accurate picture of a patient’s medical history when prescribing or dispensing opioids. The Facilitator Model for Patient Safety would reflect the solution formulated by the National Council for Prescription Drug Programs (NCPDP) to ensure that information flowing to providers, pharmacists and state databases is easily accessible, secure and available in real time – even when a patient attempts to fill a prescription across state lines. This information will also facilitate getting people with opioid abuse disorder the treatment help they need. • Supporting funding to upgrade PDMP technology: While
the funding provided to combat the opioid crisis under 2016’s Comprehensive Addiction and Recovery Act is a worthy start, Opioid Safety Alliance members call upon Congress to provide additional funding specifically for PDMP enhancements, including allowing interoperability across states. Smart, targeted investments towards this objective today will pay dividends in the future, both in terms of lives rescued from the threat of overdose and dollars saved. • Ensuring clinician access to substance abuse information: Congress must break down silos in patients’ medical records so that all information – including substance abuse history – is available to healthcare providers (so-called 42 CFR Part 2 reform). Currently, record-sharing requirements under federal law restrict provider access to addiction records and prevent clinicians from having complete information needed for safe, effective and coordinated treatment. • Expanding treatment options: The Opioid Safety Alliance will work to fully leverage telehealth and digital virtual peer support programs to provide substance use disorder treatment options via technologyenabled care. Too often, stigma prevents treatment. Virtual care fundamentally alters this dynamic. Congress should reimburse innovative care delivery models in Medicare and Medicaid, and the administration should knock down regulatory barriers to providing treatment virtually. • Testing emerging technologies: Emerging technologies and standards have shown promise in securing the supply chain in other sectors. The Opioid Safety Alliance will urge Congress and the administration to explore options to use emerging technologies to protect distribution.
High Rate of Cyberattacks on Physicians Points to Need to Increase Safety More than four in five U.S. physicians (83%) have experienced some form of a cybersecurity attack, according to new research released by the American Medical Association (AMA) and Accenture. This, according to the report, signals a call to action for the healthcare sector to increase cybersecurity support for medical practices in their communities. The findings, which examined the experiences of roughly 1,300 U.S. physicians, underscore the recognition that it is not “if” but “when” a cyberattack will occur. More than half (55%) of the physicians were very or extremely concerned about future cyberattacks in their practice. In addition, physicians were most concerned that future attacks could interrupt their clinical practices (cited by 74%), compromise the security of patient records (74%) or impact patient safety (53%). “The important role of information sharing within clinical care makes healthcare a uniquely attractive target for cyber criminals through computer viruses and phishing scams that, if successful, can threaten care delivery and patient safety,” said AMA President David O. Barbe, MD, MHA, in a statement. “New research shows that most physicians think that securely exchanging electronic data is important to improve healthcare. More support from the government, technology and medical sectors would help physicians with a proactive cybersecurity defense to better ensure the availability, confidentiality and integrity of healthcare data.” The findings show the most common type of cyberattack was phish-
ing – cited by more than half (55%) of physicians who experienced an attack – followed by computer viruses (48%). Physicians from medium and large practices were twice as likely as those in small practices to experience these types of attacks. Nearly two-thirds (64%) of all the physicians who experienced a cyberattack experienced up to four hours of downtime before they resumed operations, and approximately one-third (29%) of physicians in mediumsized practices that experienced a cyberattack said they experienced nearly a full day of downtime. In addition, the vast majority (85%) of physicians believe it is very or extremely important to share personal health data outside of their health system – they just want to do it safely. Two-thirds believe that greater access to patient data both inside (cited by 67%) and outside (65%) their health system would help them provide quality patient care more efficiently. In addition, a significant majority (83%) of physicians said that HIPAA compliance alone is insufficient and that a more holistic approach to assessing and prioritizing risks is needed. These findings are part of a research collaboration between the AMA and Accenture to raise physician awareness and understanding of cybersecurity practices. More information on the findings can be found in the research deck and infographic. JANUARY / FEBRUARY 2018 | THE BULLETIN | 39
Proposed State Budget Calls for $30M Investment in Precision Health Gov. Jerry Brown’s 2018-2019 California budget proposal calls for $30 million to be invested in precision medicine research and the establishment of the California Institute to Advance Precision Health and Medicine (CIAPHM) with a mission of improving health and healthcare through advanced computing and technology. According to the budget summary, “Building on the $23 million state investment in precision medicine to date, the Budget proposes to establish the California Institute to Advance Precision Health and Medicine with an additional $30 million one-time General Fund appropriation to continue developing demonstration projects, incorporate successful demonstration projects into the health delivery system, and further advance how data science can be utilized in healthcare. The institute would be administered through a collaboration between public and private nonprofit institutions, overseen by the Governor’s Office of Planning and Research.” This institute would build on the work of the California Initiative to Advance Precision Medicine (CIAPM), a partnership between the State of California, the University of California system, and nonprofit, academic and industry partners to stimulate collaboration and innovation in precision medicine across California. Praise for the proposed investment came from Executive Vice President of UC Health John D. Stobo: “I applaud Governor Brown’s proposal to allocate $30 million to establish the California Institute to Advance Precision Health and Medicine. This institute would build on the exceptional work of the CIAPM initiative working to advance the field of precision medicine by integrating clinical data with genetic, environmental, socioeconomic, mobile and other data from patients so that scientists can understand diseases better and develop more precise therapies.” Since its inception in 2015, CIAPM has grown into a $23 million initiative, funding eight patient-focused demonstration projects across the disease spectrum, an electronic catalog of precision medicine assets, and an economic analysis of precision medicine, among other efforts. California Life Sciences Association (CLSA) also issued a statement applauding the announcement. “These public-private partnerships are unique opportunities to further research and develop cures for diseases, and advance our understanding for the 40 | THE BULLETIN | JANUARY / FEBRUARY 2018
medicines of the future,” said Sara Radcliffe, president and CEO of CLSA. “California is the birthplace of biotechnology, and according to our newly released 2018 California Life Sciences Industry Report, the sector employs over 298,700 people working to develop innovative new medicines, technologies and therapies needed to treat and cure patients. CLSA looks forward to working with the Governor’s Office of Planning and Research to help universities and our life science member companies engage in additional public-private partnerships and apply these research dollars to build the scientific infrastructure necessary to advance precision medicine.”
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Other healthcare highlights of the proposed budget include: • $64.5 million ($31.6 million Proposition 56 funds) for a 50% rate increase, and resulting increased utilization, for home health providers, beginning July 1, 2018. • Expanding healthcare access to uninsured, reflecting the recommendations of the Select Committee on Health Care Delivery System and Coverage. Assumes an 88% federal financial match for the Children’s Health Insurance Program (CHIP) through December 31, 2017, and a 65% match beginning January 1, 2018, consistent with the 2017 Budget Act. Proposes $850.9 million in Proposition 56 revenue for healthcare treatment expenditures, including $649.9 million in 2018-19, an increase of $232.8 million from the 2017 budget, for supplemental payments and rate increases. This increase includes approximately $163 million for physician supplemental payments and $70 million for dental payments. Increases the current year Medi-Cal budget by $543.7 million General Fund, compared to the 2017 Budget Act, to cover retroactive payments of drug rebates to the federal government and a higher estimate of Medi-Cal managed care costs. Includes funding to cover the costs of the optional Medicaid expansion under the Affordable Care Act (3.9 million Californians), reflecting the state’s portion of the costs rising to 6% on January 1, 2018, including $17.7 billion ($1.4 billion General Fund) in 2017-18 and $22.9 billion ($1.6 billion General Fund) in 2018- 19.
You’ve Been Served: Lawsuit Survival Tips for Physicians Douglas McCullough, Esq., Assistant Vice President, Claims, The Doctors Company On average, each physician spends 50.7 months, or approximately 11% of an average 40-year career, on resolving medical malpractice cases — the vast majority ending up with no indemnity payment. That’s the conclusion of a study by the RAND Corporation based on data provided by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.[i] By the age of 65, more than 75% of physicians in low-risk specialties and 99% of physicians in high-risk specialties have experienced a claim.[ii] I make it a point to advise doctors to take these steps if a claim is filed against them: • Contact your medical malpractice carrier. Many malpractice carriers draw from the same pool of attorneys, so it is important to notify your carrier as soon as possible to ensure the right defense attorney is retained on your behalf. • Build your defense. The attorney representing your patient has likely already developed a good portion of their case before you were ever aware of its existence. Therefore, it is critical you be an active member of your defense team to begin building your defense. • Be prepared for extended periods of perceived inactivity. The litigation process typically lasts two to five years, with claims being filed a year to two years after a negative event or the date of discovery of an injury – depending on state laws. There will be flurries of activity, followed by long periods of perceived inactivity. Trust that your defense team is continuing to work on your behalf.
• Understand the plaintiff’s strategy. The plaintiff’s bar is very skillful at taking testimonial “sound bites” and portions of the medical records to fit their narrative. By understanding the plaintiff’s strategy, you can assist in preparing an effective defense. • Become fully engaged in the process. Those physicians who managed to survive litigation did so by becoming fully engaged in the process. • Get professional coaching on how to be an effective defendant. Physicians who develop effective coping mechanisms have a greater chance of successfully navigating the rigors of litigation. To be thoroughly prepared, you must know the medical record. You must also practice for your deposition, know your deposition testimony, and read depositions of other defendant physicians and experts – all while caring for your patients and yourself. This is no small task, but successfully defending your professional reputation is worth it. For more tips, read Malpractice Claims Consume Years of a Physician’s Career. Further insights from doctors who have experienced litigation are available in The Doctors Company’s What to Expect from Litigation video playlist. [i] Seabury SA, Chandra A, Lakdawalla DN, Jena AB. On average, physicians spend nearly 11 percent of their 40-year careers with an open, unresolved malpractice claim. Health Affairs. 2013;32(1):1-9. [ii] Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011; 365:629-636. doi: 10.1056/NEJMsa1012370.
California Named as One of Best Five States in Which to Practice Medicine California has been named one of the top five states in which to practice medicine in a new study from Physicians Practice. The study analyzed the latest data for cost of living, tax climate (state collections per capita), physician density and Medicare’s Geographic Practice Cost Index (which adjusts physician reimbursement based on regional variation in the cost to treat patients). Notably missing or very low on many other lists, California finished No. 4 in this year’s Physicians Practice ranking, with high marks in residency retention, a favorable Medicare GPCI, and malpractice premiums. The top states in order, according to the 2017 list, are Mississippi, Texas, Alaska, California and Arkansas. “For more than a decade, Physicians Practice has examined practice conditions in every U.S. state, ranking the best states for physicians to either set up their own shop or become employed,” the article announcing the list begins. “With rising rates of physician burnout, changing state legislation governing healthcare, and numerous other factors weighing heavily on the profession, many doctors are looking for a change to continue practicing medicine. And for some, a change of location is sometimes the answer. So this year, as we’ve done in the past, we’ve scoured publicly available data on everything from how expensive it is to live in a state to how many peers also call that location home. We then use an algorithm to “rank” the states that have the most attractive features for physicians.” Physicians Practice utilized the latest data for cost of living, tax climate (state collections per capita), physician density and Medicare’s Geo-
graphic Practice Cost Index (which adjusts physician reimbursement based on regional variation in the cost to treat patients) and partnered with Doximity to utilize their “Residency Navigator” to determine postresidency retention rate by state from one to nine years following completion of residency training. In addition, they partnered with medical malpractice specialists Cunningham Group for malpractice premium averages. What the metrics don’t capture, according to Physicians Practice, are things like collegiality of the healthcare community, the local arts and entertainment scene, or access to various recreational activities. So to add a little more commentary to the numbers, Physicians Practice spoke to physicians in the five states that ranked the highest this year in terms of being physician friendly. San Diego physician and California Medical Association (CMA) president, otolaryngologist Ted Mazer, MD, points to the large number of medical schools with residency programs generating the next generation of physicians who are eager to use new technology and participate in advocacy like he has never witnessed before and credits California’s diverse population of backgrounds and cultures with making the practice of medicine unique to the state. “We have pathology that you don’t see in less diverse states. You have both the challenge and the fun of dealing with people in different languages. This is all part of the excitement of practicing medicine,” Dr. Mazer told Physicians Practice. JANUARY / FEBRUARY 2018 | THE BULLETIN | 41
Bill Ending Government Shutdown Renews CHIP, Delays Taxes Benefiting ACA, Denies Funding for Community Health Centers A brief, partial shutdown of the federal government ended last month as the Senate and House approved legislation that would keep federal dollars flowing until February 8, as well as fund the Children’s Health Insurance Program for the next six years. President Donald Trump signed the bill January 22. The CHIP program, which provides coverage to children in families who earn too much to qualify for Medicaid but not enough to afford private insurance, has been a bipartisan program since its inception in 1997. But its renewal became a partisan bargaining chip over the past several months. Funding for CHIP technically expired October 1, although a temporary spending bill in December gave the program 2.85 billion. That was supposed to carry states through March to maintain coverage for an estimated 9 million children, but some states began to run short almost as soon as that bill passed. The Georgetown University Center for Children and Families had estimated that 24 states could face CHIP funding shortfalls by the end of January, putting an estimated 1.7 million children’s coverage at risk in 21 of those states. Meanwhile, both houses of Congress had been at loggerheads over how to put the program on firmer financial footing. In October, just days after the program’s funding expired, the Senate Finance Committee approved a bipartisan five-year extention of funding by voice vote. But that bill did not include a way to pay the cost, then estimated at $8.2 billion. In November, the House passed its own five-year funding bill for the program, but it was largely opposed by Democrats because it would have offset the CHIP funding by making cuts to Medicare and the Affordable Care Act (ACA). Prospects for a CHIP deal brightened earlier this month when the Congressional Budget Office (CBO) re-estimated how much the extension of funding for the program would cost. In a letter to Senate Finance Committee Chairman Orrin Hatch (R-Utah) on January 5, the CBO said changes to healthcare made in the tax bill would result in lowering the five-year cost of the program from $8.2 billion to $800 million — effectively a reduction of 90%.
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The reason, explained the CBO, is that the landmark tax bill passed in December eliminated the ACA’s individual mandate, which would likely drive up premiums in the individual market. Those higher premiums, in turn, would increase the federal premium subsidies for those with qualifying incomes. As a result, if kids were to lose their CHIP coverage and go onto the individual exchanges instead, the federal premium subsidies would cost more than their CHIP coverage. Driving that point home, on January 11, CBO Director Keith Hall wrote to Rep. Frank Pallone (D-N.J.) that renewing CHIP funding for 10 years rather than five would save the federal government money. “The agencies estimate that enacting such legislation would decrease the deficit by $6.0 billion over the 2018-2027 period,” the letter said. That made it easier for Republicans to include the CHIP funding in the latest spending bill. But it infuriated Democrats, who had vowed not to vote for another shortterm spending bill until Congress dealt with the issue of immigrant children brought to the country illegally by their parents. Republicans, said Senate Minority Leader Chuck Schumer (D-N.Y.), “were using the 10 million kids on CHIP, holding them as hostage for the 800,000 kids who were Dreamers. Kids against kids. Innocent kids against innocent kids. That’s no way to operate in this country.” Republicans, however, said it was the opposite — that Democrats were holding CHIP hostage by not voting for the spending bill. “There is no reason for my colleagues to pit their righteous crusade on immigration against their righteous crusade for CHIP,” said Hatch. “This is simply a matter of priorities.” The CHIP renewal was not the only health-related change in the temporary spending bill. The measure also delays the collection of several unpopular taxes that raise revenues to pay for the ACA’s benefits. The taxes being delayed include ones on medical device makers, health insurers and high-benefit “Cadillac” health plans. The bill does not, however, extend funding for Community Health Centers, another bipartisan program whose funding is running out. That will have to wait for another bill. SOURCE: By Julie Rovner | California Healthline
Study: Compensation, Opportunity on the Rise in Major Metropolitan Areas A new research study on the 2017 labor market for doctors found significant opportunity and compensation growth after analyzing 20 of the largest metropolitan areas and 15 common medical specialties. The report from Doximity, drawn from a sample of more than 12,000 physician job advertisements nationally, details the parts of the country and which medical specialties have the highest demand for physicians. Compensation growth was drawn from 40,000 self-reported compensation surveys. Northern California is represented in the report, with San Francisco showing the highest compensation growth, at 16%, where average physician pay rose from $282,000 to $328,000. “2017 saw another explosive national debate around the funding of healthcare for Americans. What was less controversial, but arguably as important, was the growing pressure on medical labor markets nationally,” said Nate Gross, MD, co-founder of Doximity. “Doctors caring for patients is the heart of our system, and we continue to see a big uptick in demand for physicians across the country. This backs up other studies pointing to the possibility of physician shortages moving forward. And in the short term, we’re seeing an impact on physician compensation in our data.” Key findings from the study include:
• Nationally, physician compensation grew by 5.1%. • Physician job advertisements have grown year-over-year in 10 large metropolitan areas. However, even within metro areas within the same state, there can be variation between physician demand across markets. San Francisco saw a 42% growth, while there was 1% growth in Los Angeles. • Physician compensation has grown in 10 large metropolitan areas, but despite the overall trend being up, there were several metro areas where physicians saw either declining or flat compensation growth. • Among 10 common medical specialties analyzed, physician job postings have increased overall. Geriatrics saw the most growth, at 164%, compared to a 23% increase in cardiology. “Changes in physician job postings and compensation growth were correlated, suggesting that the growth in demand may be due to increased demand for physicians in these areas,” said Christopher Whaley, PhD, lead author and adjunct professor at the University of California, Berkeley School of Public Health. “As the demand for physicians shifts across geographies and specialties, this report offers physicians insight into where their best professional opportunities may be.”
METROS WHERE DOCTORS ARE SEEING THE BIGGEST PAY RAISES Metro Area
Compensation Growth
1. San Francisco
16%
2. Indianapolis
14%
3. Los Angeles
13%
4. Philadelphia
11%
5. Milwaukee
10%
6. New York
8%
7. Minneapolis
8%
8. Pittsburgh
8%
9. Seattle
7%
10. Boston
7%
METROS WHERE DOCTORS ARE MOST IN DEMAND Metro Area
Job Ad Growth
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Are Your Prescription Pads Compliant With the Law? The California Medical Association (CMA) has received numerous calls from physicians whose prescriptions are being turned away by pharmacies for being non-compliant with state law. Specifically, the forms in question do not have checkboxes to indicate refills. California law requires 14 elements that must appear on California security prescription forms, including “checkboxes that shall be printed on the form so that the prescriber may indicate the number of refills ordered.” Security forms that lack the checkboxes, even if they indicate refills in a different way, are deemed non-compliant. This requirement took effect in 2007. In recent weeks, some pharmacies have begun to refuse to fill prescriptions written on non-compliant forms. The California Board of Pharmacy also recently reminded licensees that it will cite and fine pharmacists/pharmacies who dispense controlled drugs with non-compliant forms. According to the Board of Pharmacy, physicians who are using noncompliant forms should educate themselves on the required elements of the security prescription forms, order compliant forms from a Department of Justice-licensed security printer and consider using e-prescribing for controlled substances.
In the meantime, if you do not have compliant forms, remember that Schedule III-V controlled substances may be filled as an oral prescription if the pharmacist verifies verbally with the prescriber the number of any refills ordered and notes it on the security form. For Schedule II medications — where there are no alternatives, such as the availability of compliant forms or e-prescribing — the Board of Pharmacy allows the use of a non-compliant form on a temporary basis to allow patients to receive any Schedule II medications in a timely manner. There are further exemptions to the security form requirements for a prescription for controlled substances for use by a patient who has a terminal illness. For more information on the California security prescription form requirements and exceptions, see CMA On-Call document #3201, “Controlled Substances: Prescribing.” CMA On-Call documents are available free to members in CMA’s online health law library at www.cmanet.org/ cma-on-call. Non members can purchase documents for $2 per page. CMA members also receive 15% off all orders of compliant California security prescription pads and electronic health record printer paper from RxSecurity. Contact: CMA legal information line, (800) 786-4262 or legalinfo@ cmanet.org. JANUARY / FEBRUARY 2018 | THE BULLETIN | 43
CMS Clears Up Confusion Over Texting Policy Following confusing and contradicting guidance, the Centers for Medicare & Medicaid Services (CMS) has clarified its stance on the use of text messaging patient information between providers. In a December 28 memorandum, CMS Survey and Certification Group Director David R. Wright specified that messages sent among clinicians are permissible so long as healthcare teams use a secure platform. However, the memo was very clear that the use of text messaging for patient orders is prohibited, regardless of the platform utilized. The policy outlined in the memo comes after a report from the Health Care Compliance Association (HCCA) that raised concerns about the policy and now mirrors the current position of the Joint Commission, which underwent its own changes and confusion on the subject in 2016. The HCCA’s report indicated that at least two hospitals had received emails from CMS in late November saying that “texting is not permitted” regardless of whether the texting application was secure. “Secure texting is an integral part of a community platform for organizations. If you pull secure texting out of that pathway, you have disrupted a huge chain of communications that will have a broader effect,” said a recipient of the email in the report, adding that a week earlier, he had been signing up community physicians
for a secure texting MEMORANDUM SUMMARY application so the • Texting patient information among hospital could immembers of the healthcare team is mediately reach permissible if accomplished through them in an emergena secure platform. cy, for example, or to • Texting of patient orders is obtain orders. prohibited regardless of the platform The CMS memo utilized. seemed to directly • Computerized Provider Order Entry address HCCA’s con(CPOE) is the preferred method of cerns, stressing the order entry by a provider. agency’s recognition of texting platforms as an increasingly important healthcare communication resource. “CMS recognizes that the use of texting as a means of communication with other members of the healthcare team has become an essential and valuable means of communication among the team members.” The policies are effective immediately, according to the memo, and “should be communicated with all survey and certification staff, their managers and the State/Regional Office training coordinators within 30 days of the memorandum.”
Company Offering Free Virtual Medical Services to Disadvantaged People HealthTap has announced the launch of HealthTap for Good, healthcare experience and provides users with individualized ada nonprofit initiative to bring its premium medical services to dis- vice, information, adherence tools and instant access to doctors and advantaged people and populations around the world regardless of other providers anytime, anywhere. Giving free HOPES licenses to their ability to pay. these organizations will enable them to provide access to more afThe announcement from the company states that HealthTap fordable care to large underserved populations. for Good will provide free-of-charge access to premium health “I founded HealthTap because I believe that healthcare is a services for individuals in need, fundamental human right,” as well as to medical providsays Ron Gutman, HealthTap’s According to the World Health Organization, ers and nonprofit organizations founder and CEO. “Since we half of the world’s population lacks full coverage who take care of underprivileged launched we have helped hunpopulations worldwide. dreds of millions of people of essential health services. Even for those with Individuals in need can worldwide live healthier, hapaccess to health services, approximately 100 receive free virtual consultapier, longer lives by providing million of them are driven into extreme poverty tions with HealthTap Prime them access to the most trusted by healthcare costs (defined as living on less than physicians via video, voice or health information and tools to $2/day). text. In addition, doctors opermanage their health at no cost. ating in low-income areas can In the past couple years, we’ve obtain free-of-charge licenses to also launched premium paid serHealthTap Concierge (Software as a Service (SaaS) that establishes a vices for individuals seeking world-class concierge medicine, and “virtual practice” connecting the doctor with patients using video, have grown to provide enterprise software, technology and tools to text or voice calls). physicians, providers and payers worldwide. With this tremendous Touting itself as “the world’s first health operating system growth comes responsibility to give back in any way we can. As we powered by the largest network of interactive doctors and artificial do better, we’re committed to giving more to those in need. That’s intelligence,” HealthTap says nonprofit organizations serving un- why we created HealthTap for Good.” derprivileged populations can now obtain through HealthTap for Individuals, providers, or nonprofit organizations interested in Good a complimentary license to Health Tap’s proprietary Health HealthTap for Good are invited to apply at https://www.healthtap. Operating System (HOPES). HOPES creates a fully personalized org. 44 | THE BULLETIN | JANUARY / FEBRUARY 2018
AMA Report Shows Substantial Impact Physicians Have on Economy Physicians add opportunity, growth and prosperity to the national economy by creating 12.6 million jobs and generating $2.3 trillion in economic activity, according to a new report, The National Economic Impact of Physicians, released by the American Medical Association (AMA). “Through the care provided to their patients, physicians can have a positive and lasting impact on the health of their patients and the community as a whole. However, the breadth of a physician’s impact reaches far beyond just the provision of patient care,” the study notes. “Physicians also play a vital role in the state and local economies by creating jobs, purchasing goods and services, and supporting state and community public programs through generated tax revenues.” “The positive impact of physicians extends beyond safeguarding the health and welfare of their patients,” said AMA President David O. Barbe, MD, MHA. “The AMA’s economic impact study illustrates that physicians are strong economic drivers that are woven into their local communities by the commerce and jobs they create. These quality jobs generate taxes to support schools, housing, transportation and other public services in local communities.” The new study quantifies the economic boost that 736,873 patient care physicians nationwide provide to the economy; 89,933 of these physicians practiced in the state of California. The overall findings in the state of California are as follows: • Total Output: In California, physicians created a total of $232.0B in direct and indirect economic output (i.e., sales revenues) in 2015. On average, each physician supported $2,579,206 in output. • Jobs: In 2015, physicians supported 1,199,702 jobs (including their own), the total of direct and indirect positions. On average, each physician supported 13.34 jobs. • Wages and Benefits: Physicians contributed $135,267.9M in direct and indirect wages and benefits for all supported jobs in 2015. On average, each physician supported $1,504,097 in total
wages and benefits. • Tax Revenues: Physicians supported $11,219.4M in local and state tax revenues in 2015. On average, each physician supported $124,753 in local and state tax revenues. “California physicians hire locally, buy locally and support the local economy. Through the creation of jobs with strong wages and benefits paid to workers across the state, physicians empower a high-quality, sustainable workforce that generates state and local tax revenue for community investments,” the California Medical Association said in its release of the information. “Physicians’ economic output — the value of the goods and services provided — helps other businesses grow through their own purchasing and through the purchasing of their employees. Each dollar in direct output applied to physician services supports $2.16 in economic activity in California, and physician-driven economic activity is greater than legal services, home healthcare, higher education, and nursing home and residential care.” The report found that nationally, every dollar applied to physician services supports an additional $2.84 in other business activity. An additional 11 jobs, above and beyond the clinical and administrative personnel that work inside a physician’s practice, are supported for each $1 million of revenue generated by a physician’s practice. In addition, physicians generate more economic output, produce more jobs and pay more in wages and benefits than professionals working in higher education, nursing and community care facilities, legal services and home health. “While everybody recognizes the value that physicians bring to healthcare as such, access and quality, I don’t think many realize how significant the economic impact of physicians on communities is,” Dr. Barbe said. “For free-standing practices, that’s a pretty difficult equation to make work.” The report provides information on the economic impact of physicians nationally and in all 50 states and the District of Columbia.
Apple Heart Study App to Alert Affected Participants in Joint Study With Stanford In partnership with the Stanford University School of Medicine, Apple has launched a new app study that collects data on participants’ heart rhythms using Apple Watch. The app, designed to recognize atrial fibrillation (AFib), sends the user a notification when identifying the irregular heartbeat in hopes to stop the chances of other complications. “Through the Apple Heart Study, Stanford Medicine faculty will explore how technology like Apple Watch’s heart rate sensor can help usher in a new era of proactive healthcare central to our Precision Health approach,” Lloyd Minor, dean of Stanford University School of Medicine, told Apple Insider. “We’re excited to work with Apple on this breakthrough heart study.” The sensor in the Apple Watch uses LED lights to measure heart rate. The technology can also monitor the pattern of the heartbeat. The app uses this technology combined with software algorithms to identify an irregular heart rhythm. Atrial fibrillation is the leading cause of stroke and is responsible for
approximately 130,000 deaths and 750,000 hospitalizations in the U.S. every year. The disease typically goes undiagnosed as many patients do not experience symptoms, but if the study proves to discover an irregular heartbeat, Apple will be able to provide consultation with a doctor from the study and have an opportunity to monitor the patient more closely. “Every week we receive incredible customer letters about how Apple Watch has affected their lives, including learning that they have AFib. These stories inspire us, and we’re determined to do more to help people understand their health,” said Apple Chief Operating Officer Jeff Williams in a statement. “Working alongside the medical community not only can we inform people of certain health conditions, we also hope to advance discoveries in heart science.” If you are interested in participating in the study, download the Apple Heart Study app to your Apple Watch. Participants must be 22 years old or older. JANUARY / FEBRUARY 2018 | THE BULLETIN | 45
Pilot Program Using Drones to Deliver Medical Supplies With drone usage on the rise, a California city could be the first U.S. city to use drones to deliver blood from one medical facility to another. The Stanford Blood Center has partnered with drone manufacturer Matternet and the City of Palo Alto to ask permission from the FAA to launch a pilot program to test the use of drones to deliver medical supplies like blood and test samples. Doctors say it can take 30 minutes to an hour to currently transport blood, but it would take just 10 minutes with the use of a drone. For a patient in critical condition, that can mean the difference between life and death. “In that situation, it behooves us to move the product as quickly as possible from
here to the hospital,” said Stanford Blood Center Medical Director Tho Pham, MD. “And if we have something parked here — ready to fly at a moment’s notice — that would cut down on the time tremendously.” The delivery would be dropped at a receiving station located in a hospital parking lot or area convenient for medical staff to access. “With a system like this, you’re able to save tremendous amount of time and generally reduce waste throughout the hospital system,” Matternet CEO Andreas Rappopoulous said in a statement. “The two key things that you have to prove to the FAA is that you’re not going to harm people on the ground or increase the risk of other people using the airspace,” he continued. “If a propeller failed, for
example, it would eject a parachute and make sure the aircraft descends without hurting anyone on the ground.” The Federal Aviation Administration (FAA) recently announced it will select a small number of pilot projects that would help the integration of drones. Palo Alto city manager James Keene said they’ve submitted their application and are excited the pilot program could potentially happen. “We saw it as a really opportune moment for us to be potentially on the front end of developing policies that could affect cities in the future,” Keene said. If approved, the drones would be used to fly blood in emergencies, where time is critical and they don’t have enough staff to transport supplies quickly.
CMA Launches Coalition to Protect ACA and Improve State’s Healthcare System The California Medical Association (CMA) recently launched a new coalition of more than 100,000 California physicians, dentists, nurse practitioners, community clinics and pharmacists to protect the gains California has made under the Affordable Care Act (ACA) and improve California’s healthcare system. The Coalition to Protect Access to Care aims to actively oppose efforts in Washington to repeal and replace the ACA, which would strip health insurance from millions of Californians, as well as provide a more realistic and responsible solution to California’s SB 562 – flawed legislation that would dismantle the healthcare marketplace and destabilize the state’s economy. According to the Public Policy Institute of California, nearly 60% of Californians view the ACA favorably, and only 18% want the law repealed. The Coalition will work with policymakers to protect and expand coverage to the remaining 2 million to 3 million without access to care. The Coalition also believes that with so much uncertainty in our nation’s politics, now is not the time to walk away from the ACA in favor of establishing a new and undefined healthcare system. “We believe that every Californian deserves access to timely, quality healthcare and affordable coverage,” said CMA President Theodore M. Mazer, MD. “Unfortunately, SB 562 would wreak havoc on the market, forcing existing successful models aside while destabilizing the state budget – it’s simply unaffordable and fails to recognize real-world access and market dynamics.” SB 562 would eliminate Medi-Cal, Medicare, all private insurance and the Covered California exchange for a singular healthcare insurance product provided by the state, without offering any way to pay for it. This measure threatens the healthcare marketplace for millions of Californians and is based on erroneous assumptions regarding how California can utilize healthcare funds provided by the federal government. It also ignores the fact that the state does not have 46 | THE BULLETIN | JANUARY / FEBRUARY 2018
the same powers as the federal government to effectuate a single-payer system. What’s more, the Legislative Analyst’s Office (LAO) found that the proposal could “require new state tax revenues in the low hundreds of billions of dollars” and “could result in a lower minimum funding requirement for schools and community colleges” under Proposition 98. In other words, SB 562 would pit healthcare groups against public education advocates in an annual battle for state budget dollars, forcing Californians to choose between quality education and quality healthcare – an unfair, irresponsible and unnecessary request.
The Coalition is committed to the following principles: • Aggressively protect and expand access to healthcare by building upon the successes of the Affordable Care Act. • Work to expand access to care to the remaining 2 million to 3 million Californians who are still without coverage. • Oppose efforts to repeal or undermine the Affordable Care Act. • Oppose Senate Bill 562 and any other healthcare proposal that destabilizes California’s healthcare system by calling for unrealistic revenue increases that could destabilize our state budget. • Commit to improving and expanding care for all Californians through an approach that builds upon California’s existing healthcare delivery system. “A pluralistic healthcare delivery system can work, and we are committed to real solutions that improve and expand the current system without hurting patients or the economy of California,” said Dr. Mazer. In addition to CMA, Coalition members include the American College of Obstetricians and Gynecologists (District IX), California Association of Nurse Practitioners, California Dental Association, California Pharmacists Association, the Central California Partnership for Health and Kaiser Permanente.
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